ZUKERMAN v ZUKERMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, HANDLEY and POWELL, JJA 9 February, 14 March 1996 [1996] NSWCA 578 Testators Family Maintenance — Adult son — Life threatening illness — Cost of medical treatment — Prospects of success of treatment speculative Whether provision should be made — Appropriate form of order Mahoney AP I agree with the orders proposed by Powell JA and generally with his Honour's reasons. There has been no appeal against the order made in favour of the deceased's widow. The executors and the present respondent Mr Zuckerman have proceeded upon the basis that effect will be given to that order. Accordingly, such orders as are to be made in favour of the respondent Mr Zuckerman are to be framed upon the basis that the widow's orders take effect according to their terms. There has been no issue as to the principles to be applied in determining the present application and the appeal. Having regard to the accepted evidence as to Mr Zuckerman's medical condition, it is in my opinion proper that provision be made enabling him to visit the United States of America to seek the medical treatment in question. The provision to which Powell JA has referred and the costs which his Honour has detailed relate essentially to treatment and costs in respect of one year. It is possible that, beyond the year, further costs may have to be incurred in an endeavour to save his life. It is appropriate that what is to be done in that regard be reserved. Attention before the trial judge was directed primarily and perhaps solely to what was to be done during the next year. But, in my opinion, it is proper to infer that treatment beyond the year may be required. For this reason, it is proper that the Court retain the power to do what is right in this regard. The provisions of the order suggested by Powell JA and in particular the stipulation that the present orders should be interim orders, will assist to this end. Mr McDougall QC, in his careful argument, suggested inter alia that the provision to be made for the cost of treatment during the coming year was excessive. He put this suggestion upon several bases. I shall refer to the main suggestions made and I shall state only in summary form the submissions which were made. It was suggested that the whole of the amount in question, approximately $200,000, should not be immediately available, that it should be made available if and insofar as it is required. The suggestion was, I think, that the possibility that Mr Zuckerman might die prematurely warranted this. I do not think that this suggestion should be adopted. Mr Zuckerman is entitled to the security of knowing that the full amount will be available. No doubt a large part of it will need to be expended or at least committed earlier rather than later in the year. The Court cannot spell out with certainty the precise amounts required at precise times. In the circumstances it is proper that he have the certainty of the order proposed. 2 UNREPORTED JUDGMENTS Some question was directed to the provision of nursing services and the sum provided in that regard. I am not satisfied that there will be any overlapping of a substantial kind. The Master was entitled to adopt the calculations he did in this regard. I am not satisfied this Court should interfere with them. 5 Ihave indicated my agreement with the form of the orders proposed by Powell JA. Should there be a matter of detail which requires consideration, the parties may together agree upon and seek such a variation of the orders as is necessary. Handley JA I have the misfortune to differ from my brethren in this appeal 40 and will explain my reasons for coming to that conclusion. I can do this briefly because Powell JA has set out the facts and the history of the proceedings. l agree that the learned Master fell into error in considering that his lump sum award of $200,000 could without doubt be reviewed in favour of the respondent under s8 of the Family Provision Act simply because he characterised it as 15 awarded "by way of maintenance". The Master added: "Tn particular I characterise this as maintenance for a period because, given the comments of the Court of Appeal in Wentworth v Wentworth (unreported, 24 August 1995), I would not wish to shut out Gregory from any further application under s8 of the Act that becomes necessary because of a change in 20 circumstances". If the views of Powell JA in Wentworth v Wentworth are correct, s8 does not authorise the Court to vary in favour of an applicant an order providing for payment of a lump sum. On the other hand it was entirely appropriate for the Master to seek to preserve the respondent's right to claim further provision from 25 the Estate. I agree that the appropriate course is to make an interim order. This change in the form of the order brings into consideration both its quantum and the date of payment. The respondent's medical condition has created the need for further provision in the form of a lump sum or sums to enable him to undertake medical treatment in the United States which is not available to him in 30 this country. However the same condition, his greatly reduced life expectancy, and his susceptibility to infection in my judgment require the Court to frame its order to ensure, in accordance with both principle and authority, that the benefits of that order are enjoyed by the respondent personally and do not merely divert those benefits from beneficiaries selected by the testator to those chosen by the 35 respondent. See White v Baron (1980) 144 CLR 431 at 444-5, 458. Accordingly I would have favoured structuring the order so that the lump sum was payable in two instalments six months apart. To do this is to do no more than protect the Estate from one contingency, just as the making of an interim order protects the respondent from another. 40 The remaining issue concerns the quantum of the order. The Master noted that the needs advanced by the respondent were: Nursing 52 weeks at $2,018 $104,936 Flights Business Class $5,935 x 2 - $11,870 x 4 47,480 45 | Accommodation 26 weeks at say $750 per week 19,500 General Expenses 26 weeks at $1,500 per week (cost of transport, 39,000 food, drugs, medical expenses, personal living) 50 | Total: $210,916 URJ ZUKERMAN v ZUKERMAN (Handley JA) 3 The only issue in the appeal concerned the claim for nursing care. The Master found "there is also evidence establishing the need and quantum of the nursing care referred to". The affidavit of Patricia Peoples established that the provision of an Australian registered nurse to accompany the respondent to the USA for his 5 treatment there would cost $A2,018 per 7-day week plus workers' compensation and travel insurance. There is no evidence in the appeal book that the respondent had been advised to make two visits to the USA for treatment in the 12 months following the trial. The affidavits of the respondent, his treating doctor, Patricia 10 Peoples and a travel agent are all silent on this question. There was no cross-examination on these affidavits and no other oral evidence. It is clear therefore that there must have been some admission or concession at the trial which supported the Master's assumption that the respondent had been advised to make two visits to the USA each of approximately 13 weeks during the next 45 12 months. Accommodation 26 weeks at say $750 per week 19,500 General Expenses 26 weeks at $1,500 per week (cost of transport, 39.000 food, drugs, medical expenses, personal living) Total: $210,916 The only issue in the appeal concerned the claim for nursing care. The Master 25 found "there is also evidence establishing the need and quantum of the nursing care referred to". The affidavit of Patricia Peoples established that the provision of an Australian registered nurse to accompany the respondent to the USA for his treatment there would cost $A2,018 per 7-day week plus workers' compensation and travel insurance. There is no evidence in the appeal book that the respondent had been advised to make two visits to the USA for treatment in the 12 months following the trial. The affidavits of the respondent, his treating doctor, Patricia Peoples and a travel agent are all silent on this question. There was no cross-examination on these affidavits and no other oral evidence. It is clear therefore that there must have been some admission or concession at the trial which supported the Master's assumption that the respondent had been advised to make two visits to the USA each of approximately 13 weeks during the next 12 months. The respondent made no claim for full time professional nursing care in 40 Australia and the evidence supporting the weekly rate of $2,018 was not for such care. The rest of the claim was structured on two visits to the USA each of 13 weeks. In these circumstances I have concluded that the Master fell into error in accepting the respondent's claim for nursing care at $104,936 for 52 weeks. Instead in my opinion he should have accepted the claim as one for 26 weeks at 45 the same rate. The Master made an order for $200,000 in respect of the claim for $210,916. It was not necessary for him to explain his reasons for slightly discounting the claim in this way and he did not do so. In my opinion the error made by the Master in the quantification of the nursing claim requires the further intervention of this Court and the order should be 50 reduced to $150,000 accordingly. This reduction will maintain the modest discount adopted by the Master in arriving at his order. 4 UNREPORTED JUDGMENTS In my opinion therefore the appeal should be allowed and an interim order made for payments of $75,000 to the respondent on 21 December 1995 and 21 August 1996 to enable him to make two evenly spread 13 week visits to the USA for treatment during this calendar year. I would also have incorporated in the order a provision authorising the executors in their discretion to advance the date of the second payment if it was necessary for the respondent to remain longer in the USA or return sooner than was anticipated at the time of the trial, thus enabling the executors in a proper case to act without requiring a further order of the Court. Since mine is a minority view there is no need for me to further elaborate on these orders. Powell JA In this appeal, the hearing of which was, for reasons which will soon become apparent, expedited, the appellants, Max Zukerman and Phillip Wiseman ("the Executors"), who are the executors of the will and trustees of the estate of Morris (Maurice) Zukerman ("the Deceased") seek orders, first, that the order made by Master Macready on 8th December 1995 pursuant to the provisions of the Family Provision Act 1982 ("the Act") in favour of the Respondent, who was the only child of the Deceased, be set aside; second, either, an order dismissing the proceedings which had been brought by the Respondent seeking further provision out of the estate of the Deceased, or, alternatively, that, for the time being, no order in favour of the Respondent be made in the proceedings; or, third, further alternatively, that the amount of any provision made in favour of the Respondent be the subject of an interim order and of a substantially reduced sum. The bases upon which the Executors have sought to found their appeal are: 1. that although, as will later appear, the Respondent has demonstrated a need for a substantial sum of money to enable him to travel to the United States for the purpose of undertaking specialised, and, to an extent, experimental, medical treatment not presently available in Australia, his financial position is such that he is able to meet the cost of such travel and treatment out of his own funds; and 2. that because of the experimental nature of that medical treatment and the fact that the prospects of a successful outcome from the treatment are highly speculative, the quantum of the order made by the Master was excessive, and, if any provision were called for, that provision ought to have been in the form of a series of staged payments rather than of a single payment of the size provided for in the Master's order. The Deceased, who was aged 81 years at the time of his death on 11th April, 1995, was born in New Zealand but came to this country when aged about 17 years and continued thereafter to live in this country. Although the material that is before the Court is a little obscure, it would appear probable that, with the exception of a period of war service, the greater part, if not the whole, of the Deceased's working life was devoted to the insurance industry, either, as an insurance agent employed by one or other of the companies operating in the industry, or, as an insurance broker - it seems clear enough that, by no later than 1979, the Deceased had caused to be incorporated a company known as Maurice Zukerman Pty Ltd ("the broking company") for the purpose of carrying on his activities as an insurance broker. The Deceased appears to have been married on three occasions, the first, in about 1947, to one Vera Adams, that marriage being subsequently dissolved, the second at a time which is not known to me, to one Lea whose family name is not known to me, that marriage being subsequently dissolved; and, on the third occasion, in December 1974 to one Norma Phillips, that marriage continuing URJ ZUKERMAN v ZUKERMAN (Powell JA) 5 until the Deceased's death. As will be apparent from what I have earlier written, the Deceased had but one child of his various marriages, namely, the Respondent, who has recently attained his 47th birthday. It would appear that the Deceased developed glaucoma in both eyes during the 1950s, and that thereafter his sight continued to deteriorate. By the time of the Deceased's marriage to his widow, his vision was greatly impaired, he having no sight in one eye and only 10 per cent tunnel vision in the other. Thereafter the Deceased's vision continued to deteriorate until he became completely blind despite which fact he continued to work until 1989 when he sold his insurance broking business. Although, for reasons upon which it is not necessary to enter, the Deceased and his widow separated for about a year in 1985, they were thereafter reconciled and, as I have earlier indicated, the marriage continued until the Deceased's death. As will be apparent from what I have earlier written, the Deceased came to depend heavily upon the assistance of his widow, the demands upon her increasing after 1990 when the Deceased developed chronic bronchitis and emphysema. The Deceased's widow would have been aged about 66 years at the time of the Deceased's death, and, so far as one can judge, her health would have been at least reasonable. At that time, the Deceased's widow had no assets and no income of her own, although, upon the death of the Deceased, she became entitled to receive a pension payable by the Commonwealth Department of Veterans Affairs and, in addition, became entitled to certain benefits under the will of the Deceased. The Respondent was born on 6th February 1949. Although it would appear that, during the Respondent's childhood and teenage years, the Deceased expressed the wish that the Respondent should join him in his insurance broking business, that course was not one which appealed to the Respondent, who, instead, trained as an actor and a dancer. For about fifteen years from the age of 25 years, the Respondent earned his income professionally from acting and dancing but for reasons to which I will shortly turn, of more recent years the Respondent has been unable to continue full time with any reliable work with any sort of dance company and he has worked only casually as a receptionist or doing other forms of casual work in places such as gymnasiums and the like. In about 1985, the Respondent was diagnosed as HIV positive, since which time his condition has deteriorated. At the time of the hearing before Master Macready in November 1995, the Respondent was said to be "category 4 HIV" and, as well, suffering from Karposi's sarcoma, a form of cancer associated with HIV patients which manifests itself in skin lesions. It would seem that, because the Respondent is "category 4 HIV", he is at risk of every opportunistic infection and could contract a life-threatening infection at any time. It would further seem that, at the time of the hearing before the Master, the Respondent was being treated on a trial basis with several anti retroviral drugs designed to raise his CD4 cell count and thus to render him less at risk of opportunistic infection but that, at the time of the hearing, those drugs had not been shown to be effective over a long period of time. In addition, the only therapy then available in Australia for treatment of Karposi's sarcoma was chemotherapy which, so it would seem, entails a great number of side effects and is often difficult to use with patients, such as the Respondent, who are already immuno suppressed. By reason of those facts, so it would seem, the opinion of the Respondent's treating doctor would seem to have been that the Respondent, in the absence of more effective therapy, would have had a life expectancy of between six months and a year. 6 UNREPORTED JUDGMENTS In the affidavit which she swore in support of the Respondent's application, the Respondent's treating doctor referred to two drugs, Saquinavir produced by Roche Pharmaceuticals, and Ritonavir manufactured by Abbott Pharmaceuticals, in the United States each of which appears to have been the subject of trials both in the United States and elsewhere, and approval for the marketing of which had then been sought, or was in the process of being sought, from the Food and Drug Authority in the United States. At the time of swearing her affidavit, the Respondent's treating doctor expressed the view that approval for the sale and general prescription of Saquinavir was likely to be forthcoming by the end of December 1995, and that approval for the sale and general prescription of Ritonavir was likely to be available by February 1996. Of those two drugs Ritonavir is said to be a protease inhibitor which raises the CD cell count much more effectively than any other drug so far known and which also has the additional benefit of dissolving lesions caused by Karposi's sarcoma. However, even if marketing approval be obtained in the United States, the sale and prescription of the drugs in Australia could not be undertaken without a further marketing approval being obtained in Australia. Past experience would show that there could well be a significant delay in obtaining such an approval in Australia and that even if such an approval were obtained such drugs would not necessarily be made available to the public under the Pharmaceutical Benefits Scheme. In the affidavit which she swore in support of the Respondent's application, the Respondent's treating doctor expressed the view that the Respondent should be referred to Professor Marcus Conant, who is said to be one of the world authorities on HIV, and to have the largest HIV private practice in the world, that practice apparently being carried on in San Francisco. In her affidavit the Respondent's treating doctor further expressed the view that the Respondent should travel to the United States as soon as the marketing of Saquinavir and Ritonavir has been approved, and that he should be prepared to stay there for an extended period to enable him to take part in any programme involving new drugs as they are made available. Whether it was so at the date of the death of the Deceased, the fact is that, at the date of the hearing before the Master, the Respondent was unemployed. The Respondent's assets at that time were not extensive, they being limited to 1,600 shares in a company Mena Flats Pty Ltd, the owner of a property 295A Edgecliff Road, Woollahra, which shares the respondent owned jointly with his mother Vera Zukerman and the ownership of which shares entitled the respondent to live, as he did, in Flat 2, 295A Edgecliff Road, Woollahra; the sum of $250,000 which he had invested on a contributing first mortgage secured on a property at New South Head Road, Vaucluse, that sum of $250,000 representing the total of the sum of $100,000 given to the Respondent by the Deceased from the sale of his shares in the broking company and the sum of $150,000 given to him by his mother; and the sum of $10,000 or thereabouts in a bank account. At that time, the Respondent owed his mother $12,000, that sum having been lent by her in order that the Respondent might pay the income tax for which he had been assessed for the 1994 tax year, and owed his aunt a further $8,000 which had been lent to him by her as his income was significantly below his living expenses. Among the assets of the Deceased at the date of his death were the two issued shares in the capital of a company known as Milaine Pty Ltd ("the Trustee Company"), a company which, either, the Deceased had caused to be incorporated, or, the shares in which the Deceased had acquired, at some time prior to 15th May 1979, on which date there was executed a Deed, to which the URJ ZUKERMAN v ZUKERMAN (Powell JA) 7 Trustee Company was a party, pursuant to which there was established "The Zukerman Family Trust". At the date of the death of the Deceased, the sole asset of the Trustee Company was a parcel of shares in a company known as 36 Wolseley Road, Point Piper Pty Ltd ("the Home Unit Company"), the ownership of which parcel of shares entitled the holder to occupy Unit 2 in the building known as 36 Wolseley Road, Point Piper. Despite the terms of the Trust Deed, Unit 2 was occupied by the Deceased - who was not a beneficiary of the Trust - and his widow as their home from the date of acquisition of the shares in the Home Unit Company until the Deceased's death, the Deceased's widow continuing to reside in the unit thereafter. As at the date of death of the Deceased, there was owing by the Trustee Company to the Deceased an amount of $232,237 - whether that sum represented moneys advanced to the Trustee Company in order that it might acquire the shares in the Home Unit Company, or whether it represented sums advanced from time to time to enable the Trustee Company to discharge amounts payable for rates and taxes, home unit levies and the like is unclear. The Trust Deed by which The Zukerman Family Trust was constituted contained a number of provisions frequently found in such deeds. The primary provision was that contained in CL5 of the Deed, which clause was in the following terms: "5. The assets of the Trust shall be held by the Trustee UPON TRUST: (a) As to the capital for such of the first second or third corpus beneficiaries or the alternate corpus beneficiaries as shall be living or in existence at the distribution date as the Trustee in his absolute discretion shall determine and in such shares between them or to such one or more of them to the exclusion of such one or others as the Trustee shall determine and in default of determination equally among such of the first corpus beneficiaries as shall be living at the distribution date and if more than one as tenants in common PROVIDED HOWEVER THAT if none of the first corpus beneficiaries shall be living at the distribution date, then and in default of determination as aforesaid, for such of the second corpus beneficiaries as shall be living at the distribution date and if more than one as tenants in common in equal shares PROVIDED FURTHER THAT if none of the first or second corpus beneficiaries shall be living at the distribution date then and in default of determination as aforesaid for such of the third corpus beneficiaries as shall be living at the distribution date and if more than one equally among them AND PROVIDED FURTHER THAT if sone of the first second or third corpus beneficiaries shall be living at the distribution date then and in default of determination as aforesaid for such of the alternate corpus beneficiaries as shall be living or in existence at the distribution date and if more than one, equally among them. (b) As to the income thereof derived during each Trust Accounting Year for such of the first second or third corpus beneficiaries or the alternate corpus beneficiaries living or in existence in such Trust Accounting Year as the Trustee shall in his absolute discretion determine in each year and in such proportions among them or to such one or more of them to the exclusion of such other or others as the Trustee may determine AND IT IS HEREBY EXPRESSLY DECLARED that the Trustee shall make his determination pursuant to this clause on or before the day before the lase day of the Trust Accounting Year in respect of the income received by them in the Trust Accounting Year and in default or determination the income received in the Trust Accounting Year shall be divided equally among such of the first corpus beneficiaries as shall be living on the last 8 UNREPORTED JUDGMENTS day of the Trust Accounting Year PROVIDED HOWEVER THAT if none of the first corpus beneficiaries shall be living at the lase day of the Trust Accounting Year then in default of a determination by the Trustee pursuant to this clause the income derived in the Trust Accounting Year shall be divided equally among such of the second corpus beneficiaries as shall be living on the lase day of the Trust Accounting Year PROVIDED HOWEVER THAT if none of the first or second corpus beneficiaries is living at the last day of the Trust Accounting Year then and in default of determination as aforesaid the income be divided equally among such of the third corpus beneficiaries as are living in each Trust Accounting Year AND PROVIDED THAT if none of the first second or third corpus beneficiaries is living at the last day of the Trust Accounting Year then and in default of determination as aforesaid the income shall be divided equally among such of the alternate corpus beneficiaries as are living or in existence in each Trust Accounting Year." The other provision in the deed which might be noted was CL19 which was in the following terms: "19. In this Deed, unless the context otherwise permits: (a) 'The Trustee' shall mean the first Trustee or the Trustee from time to time of the Trust. (b) 'The distribution date' shall mean the date twenty-one (21) years from the death of the last surviving descendant of King George VI living at the date of this Deed or twenty-one (21) years from the death of the last survivor of the first and second corpus beneficiaries living at the date of this Deed whichever is the later or the first day of January in the year of Two Thousand and Twenty whichever first occurs or such earlier date as the Trustee in his absolute discretion shall determine. (c) 'The Trust Accounting Year' shall mean the year commencing on the First day of July and concluding on the Thirtieth day of June in the following year PROVIDED THAT in respect of the period from the date hereof to the Thirtieth day of June next following shall mean that period PROVIDED THAT in respect of the period from the immediately proceding First day of July and concluding on the distribution date it shall mean that period. (d) 'The first corpus beneficiary' shall mean Gregory Zukerman. (e) 'The second corpus beneficiaries' shall mean Norma Zukerman, Annie Zukerman, Hyman Zukerman and Betty Zukerman. (f) 'The third corpus beneficiary' shall mean any further issue of Maurice Zukerman born before the distribution date. (g) 'The fourth corpus beneficiary' shall mean Maurice Zukerman Pty Ltd. (h) 'The fifth corpus beneficiaries' shall mean any spouse or issue of the first corpus beneficiary. (i) 'The alternate corpus beneficiaries' shall mean the Sir Moses Montefiore Jewish Home, Jewish Communal Appeal and the Jewish National Fund." On the 8th June 1994, the Deceased executed his Last Will and Testament, Probate No 108983/95 whereof was, on 22nd June 1995, granted by this Court to the executors. The provisions of that Will were rather complex and, as it seems to me, despite the terms of the Trust Deed, sought, in a rather irregular way, to intermingle the assets of The Zukerman Family Trust with the assets forming part of the Deceased's estate. For present purposes, the following provisions of that will should be noted: URJ ZUKERMAN v ZUKERMAN (Powell JA) 9 "3 I GIVE AND BEQUEATH all my shares in Milaine Pty Ltd to my Trustee UPON TRUST for my said son GREGORY ZUKERMAN during his lifetime and after his death UPON TRUST for my wife NORMA MARGARET ZUKERMAN during her lifetime or widowhood, and after the death or subsequent remarriage of my wife NORMA MARGARET ZUKERMAN (whichever first occurs) UPON TRUST as to both capital and income for the MONTEFIORE JEWISH HOME of 120 High Street, Hunters Hill near Sydney aforesaid absolutely. 41GIVE AND BEQUEATH to my said son GREGORY ZUKERMAN all my jewellery household furniture plate plated articles linen china books manuscripts drawing prints engravings etchings lithographs printed music musical instruments statuary works of art and other a articles of household use or ornament and other chattels and personal effects in use in and about or in connection with my private residence at the date of my death as well as all my paintings provided that all of the aforesaid shall remain in my unit (as hereinafter defined) until the death or remarriage of my said wife NORMA MARGARET ZUKERMAN whichever first occurs. 5 (a) I|GIVE AND DEVISE my land situate at and known as 14 Ocean Street Manly aforesaid (hereinafter called 'the Manly land') to my Trustees in fee simple UPON TRUST that my Trustees pay subject to CL5(b) hereof the income from the Manly land to my said wife NORMA MARGARET ZUKERMAN during her lifetime and after her death UPON TRUST for GREGORY ZUKERMAN during his lifetime PROVIDED THAT he survive the survivor of myself and my said wife NORMA MARGARET ZUKERMAN and after the death of the survivor of my said wife NORMA MARGARET ZUKERMAN and my said son GREGORY ZUKERMAN UPON TRUST as to both capital and income upon the same trusts as hereinbefore declared in respect of my residuary estate. (b)I DIRECT that my Trustees shall pay from the income of the Manly land: (i) all rates, taxes, charges and other outgoings payable in respect of the Manly land: (ii) all expenses and disbursements required during such residency to keep the Manly land in good repair and condition and insure so far as is practical against fire and damage to the full value thereof in some insurance office of repute and to the satisfaction of my Trustee in all respects. (c) MY TRUSTEES SHALL have the power in their absolute discretion to: (i) sell the Manly land, and (ii) invest the proceeds of such sale in accordance with CL15 of my Will. (d) I DIRECT that if the Manly land is sold then the income from the investment of the proceeds of such sale shall be paid to my said wife NORMA MARGARET ZUKERMAN during her life and after her death to my Trustees UPON TRUST for GREGORY ZUKERMAN during his lifetime PROVIDED THAT he survives the survivor of my self and my said wife NORMA MARGARET ZUKERMAN and after the death of the survivor of my said wife NORMA MARGARET ZUKERMAN and my said son GREGORY ZUKERMAN UPON TRUST as to both capital and income upon the same trusts as hereinafter declared in respect of my residuary estate. (e) I DIRECT that if the net income payable to my said wife NORMA MARGARET ZUKERMAN under the provisions of subpara(a) or subpara(d) of this CLS of my will shall be less than the prescribed sum (as defined in subpara(f) hereof) in respect of any year or part of a year (where that is applicable), then I 10 UNREPORTED JUDGMENTS GIVE AND BEQUEATH to my said wife NORMA MARGARET ZUKERMAN out of my residuary estate an amount equivalent to the difference between the prescribed sum and the net income that my said wife actually receives under the provisions of either subpara(a) or subpara(d) of this CL6. The provisions of this subpara(e) shall operate during the lifetime of my said wife NORMA MARGARET ZUKERMAN. (f) FOR the purposes of subpara(e) hereof, the prescribed sum shall be the greater of the amount of $31,200 per annum (apportioned on a daily basis in respect of any period less than one year), and the amount of $26,000 (apportioned on a daily basis in respect of any period less than one year) but as indexed annually in accordance with the following formula: $26,000 x CPI --- Where - CPI = the all Groups Consumer Price Index for Sydney (as published by the Australian Bureau of Statistics) last published prior to each subsequent anniversary date of my death during the subsequent lifetime of my said wife NORMA MARGARET ZUKERMAN; X = the all Groups Consumer Price Index for Sydney (as published by the Australian Bureau of statistics lase published prior to the date of my death; PROVIDED HOWEVER that if on the date of my death or if on any anniversary of the date of my death, the All Groups Consumer Price Index for Sydney has been changed, abandoned or is no longer published, then in lieu thereof there shall be substituted for CPI in the foregoing formula such price as the Commonwealth Statistician shall substitute therefor and H no price index is substituted, then any similar statistic kept by the Commonwealth or New South Wales statistician as my Trustees shall in their absolute discretion determine, and myh Trustees shall be empowered to adjust the formula according to such substituted price index or substituted statistic as my Trustees shall in their absolute discretion determine to ensure that the determination of the prescribed sum shall be fair and equitable and a true measure of inflation. 7 I REQUEST my Trustees to allow my said wife NORMA MARGARET ZUKERMAN to reside in 2/36 Wolseley Road, Point Piper near Sydney aforesaid, (herein called 'my unit'), notwithstanding that the title to such unit is not in my name, and I request that my Trustees allow my said wife to reside in my unit during her lifetime so long as she remains my widow and until her death or subsequent remarriage. If my said wife does reside in my unit after my death, then I DIRECT AND DECLARE that my Trustees are to pay all the outgoings of my unit (but without limiting the generality of the foregoing council rates, water rates, land tax, body corporate levies and contributions to 36 Wolseley Road Pty Ltd if my unit still remains in company title) out of the income to which my said wife is otherwise entitled pursuant to the provisions of CLS hereof. 8 IN THE EVENT that my said wife does not wish to reside in my unit after my death, or resides in my unit after my death but thereafter no longer wishes to reside in my unit and in either case wishes to move to a retirement unit, I DIRECT that my Trustees if they think fit may purchase out of my residuary estate a retirement unit, in which my said wife can reside until her death or her subsequent remarriage. My Trustees shall be entitled to furnish and equip such retirement unit as they think suitable, and the purchase price of such unit, furnishings and equipment shall be paid out of the capital of my residuary estate. All outgoings and expenses with respect to the maintenance of such retirement URJ ZUKERMAN v ZUKERMAN (Powell JA) 11 unit shall be paid by my Trustees out of the income otherwise payable to my said wife pursuant to the provisions of CL5(a) hereof. Without limiting the generality of the foregoing such outgoings and expenses shall include all rates, taxes, levies, insurance, repairs and otherwise in respect of such retirement unit. I DIRECT AND DECLARE that after the death or subseqeunt remarriage of my said wife, my Trustees shall hold such retirement unit UPON TRUST as to both capital and income for my said son GREGORY ZUKERMAN during his lifetime, and after his death UPON TRUST as to both capital and income upon the same trusts as hereinafter declared in respect of my residuary estate. 9 I GIVE DEVISE AND BEQUEATH the residue of my real and personal estate of whatsoever kind and wheresoever situate unto my Trustees UPON TRUST to sell call in and convert the same into money (with power in their absolute discretion to postpone such sale calling in and conversion) and after payment thereout of my debts, funeral and testamentary expenses to stand possessed the residue thereof (herein called 'my residuary estate') UPON TRUST for my said son GREGORY ZUKERMAN during his lifetime, and after his death, UPON TRUST as to both capital and income for such of my niece JILL ZUKERMAN of 624b New South Head Road, Rose Bay, my nephew the said MAX ZUKERMAN and the sons of my brother HYMAN ZUKERMAN of Wellington, New Zealand as shall then be living, and if more than one in equal shares as tenants in common. 10 I DIRECT AND DECLARE that my Executors shall not call upon or ask MILAINE PTY LIMITED or such other Trustee for the time being of the ZUKERMAN FAMILY TRUST as constituted by deed dated 15 May 1979 to repay any loan or loans outstanding by the said MILAINE PTY LIMITED to me until after the last to occur of the death of my said son GREGORY ZUKERMAN, and the death of my said wife NORMA MARGARET ZUKERMAN or the subsequent remarriage of my said wife NORMA MARGARET ZUKERMAN (whichever shall first occur). During such time, the said loan or loans shall be left outstanding to my estate and shall not bear any interest whatsoever 12 I GIVE AND BEQUEATH to MILAINE PTY LIMITED out of my residuary estate an amount equivalent to any special levies or capital levies raised by 36 WOLSELEY ROAD PTY LIMITED in relation to my unit. 1 DECLARE that my intention is that my said wife NORMA MARGARET ZUKERMAN shall not be liable directly or indirectly in relation to the payment of such special levies or capital levies. | FURTHER DIRECT AND DECLARE that my Trustee shall be entitled to pay such bequest on behalf of MILAINE PTY LIMITED direct to 36 WOLSELEY ROAD PTY LIMITED upon production to them of the relevant statement and details in relation to the levying of any such capital levies or special levies. 18 NOTWITHSTANDING the provisions of CL7 of my Will, IREQUEST my Trustees to rent out my unit at 2/36 Wolseley Road, Point Piper even though my said wife NORMA MARGARET ZUKERMAN does not reside therein, and that such rental of my unit shall continue until the death of the survivor of my said wife and my said son GREGORY ZUKERMAN." At the time of executing his said Will, the Deceased, with scant regard for the provisions of the Trust Deed, also executed what has been described as "a letter of instructions", which letter of instructions, addressed to the Deceased's Trustees, was in the following terms: "I have today executed my Will. Under the 12 UNREPORTED JUDGMENTS terms of my Will, I have given you my shares in Milaine Pty Ltd to hold in trust firstly for my son GREGORY ZUKERMAN during his lifetime, then after his death upon trust for my wife NORMA MARGARET ZUKERMAN during her lifetime and after her death or subsequent remarriage upon trust for the MONTEFIORE JEWISH HOME absolutely. Milaine Pty Ltd is the trustee of the Zukerman Family Trust as constituted by deed dated 15 May 1979. I specifically request that if at all possible, the unit at 2/36 Wolseley Road, Point Piper be rented out and not sold and that any retirement or replacement unit for my said wife is to be bought out of my residuary estate or out of borrowings raised on the security of the said home unit or any other of the assets of the Zukerman Family Trust. The rental of the unit at 2/36 Wolseley Road, Point Piper is to continue until after the lase to occur of the death of my son GREGORY ZUKERMAN and the expiration of the relevant period. Accordingly, I request that you exercise your powers as directors of and shareholders in Milaine Pty Ltd to ensure that Milaine Pty Ltd exercises its powers as trustee of the Zukerman Family Trust as follows: 1 To allow my said wife NORMA MARGARET ZUKERMAN to reside in the unit at 2/36 Wolsely Road Point Piper owned by the Zukerman Family Trust so lond as she remains my widow and until the first to occur of her remarriage or death ('the relevant period'). 2 If my said wife does not wish to reside in the said unit after my death or resides in the unit after my death but thereafter no longer wishes to reside in the unit and in either case wishes to move to a replacement or retirement unit, I request that Milaine Pty Ltd as trustee of the Zukerman Family Trust purchase a replacement or retirement unit out of my residuary estate or out of borrowings raised on the security of the said home unit or any other of the assets of the Zukerman Family Trust, and thereafter allow my said wife to reside in such replacement or retirement unit until the expiration of the relevant period. I request that you arrange for Milaine Pty Ltd to furnish and equip such retirement unit. 3 After the expiration of the relevant period, I request that you cause Milaine Pty Ltd to exercise its power in the same manner for the benefit of my son GREGORY ZUKERMAN, allowing him to reside during his lifetime in any property owned by the Zukerman Family Trust. 4 To rent out my unit at 2/36 Wolseley Road, Point Piper even though my said wife does not reside therein, and to continue the renting out of my unit until the last to occur of the dealth of my said son GREGORY ZUKERMAN and the expiration of the relevant period. 5 After the last to occur of the death of my said son and the expiration of the relevant period, I request that you cause Milaine Pty Ltd to appoint the following, listed below in the first column, as beneficiaries of the Zuckerman Family Trust and to pay to each of them the sum adjacent to their respective names in the second column below by way of distribution out of the trust upon sale of the unit at 2/36 Wolseley Road Point Piper and to appoint the MONTEFIROE JEWISH HOME as the sole residuary beneficiary of the Zukerman Family Trust and if necessary to vest the Trust for the benefit of the said MONTEFIROE JEWISH HOME absolutely (subject to payment of amounts listed in the second column below to the beneficiaries listed in the first column below as aforesaid). Jewish Communal Appeal URJ ZUKERMAN v ZUKERMAN (Powell JA) 13 140 Darlinghurst Road, Darlinghurst to be utilised $35,000.00 for the sole benefit of the Centre for Ageing Kehillat Masada Synagogue 9-15 Link Road, St $15,000.00 Ives United Israel Appeal 140 Darlinghurst Road, $5,000.00 Darlinghurst 6 I confirm that after my death the entire amount of my pension and any medical benefits associated therewith, as paid by the Commonwealth Department of Veteran Affairs, is to go in whole to my wife NORMA MARGARET ZUKERMAN. 7 I confirm that if there are any improvements made or to be made to the Unit at 2/36 Wolseley Road, Point Piper after my death, all of the costs of such improvements should be paid for by the Zukerman Family Trust. 9 I specifically wish my nephew MAX ZUKERMAN to be appointed a director of Milaine Pty Ltd. 10 In summary then, I wish Milaine Pty Ltd to ensure that as trustee of the Zukerman Family Truset it exercises its powers as trustee for the benefit of my said wife during the relevant period, and after the expiration of the relevant period, for the benefit of my said son, and after the last to occur of the death of my said son and the expiration of the relevant period, for the benefit of the MONTEFIORE JEWISH HOME absolutely, (subject to payment of the three amounts to the three beneficiaries named in paraS hereof). The MONTEFIORE JEWISH HOME is to be appointed the sole residuary beneficiary of the Zukerman Family Trust and if necessary the Trust is to be determined and the assets of the Trust (subject to payment of the three amounts to the three beneficiaries named in paraS hereof) vested in the MONTEFIORE JEWISH HOME absolutely. I also wish my nephew MAX ZUKERMAN to be appointed an additional director of Milaine Pty Ltd." It should be noted, here, that, in the affidavit which he swore in support of his application, the Respondent, who was not cross-examined on the hearing, deposed that he had not told either the Deceased or his (the Respondent's) mother of his condition until November 1994. As disclosed by the inventory of property annexed to the Grant of Probate of the Deceased's Will the Deceased's estate was said to have a gross value of $1,676,350.63 the principal assets being: 1. a property at 14 Ocean Road, Manly ($500,000) which property was apparently a block of flats let out to tenants, the nett return from the property being said, in evidence, to be about $42,000 per year; 2. shares in various public companies ($322,812 approximately); 3. dividends declared but unpaid at date of death ($9,550), moneys on deposit with various banks ($580,603), loan to the Trustee Company ($232,237). uncollected Veterans Affairs pension ($17,308 approximately). By the time of the hearing, a number of the assets forming part of the Deceased's estate had either been realised, or, in the case of the shares in one of the public companies, had been the subject of a take-over offer, which offer, once accepted, led to the issue to the Executors of shares in the offeror company together with the payment of the sum of money which was then paid into the 14 UNREPORTED JUDGMENTS estate bank account. By the time the matter came on for hearing, the assets forming part of the estate were said to have a value of $1,697,976.22 being made as follows: 1. the property at 14 Ocean Road, Manly ($500,000); 2. shares in public companies ($373,977.28); 3. estate bank account ($586,720.94); 4. household furniture and effects ($5,000); 5. loan to Trustee Company ($232,237); 6. one share in Trustee Company ($1). Although it did not form part of the estate of the Deceased, it is convenient to note at this stage that the home unit - or, more strictly, the shares in the Home Unit Company - were said then to have a value of $500,000. By the time of the hearing, the Executors had paid to creditors of the Deceased an amount of $15,000 approximately, and had, in addition, paid to the Deceased's widow sums representing $2,600 per month calculated from the date of death of the Deceased, and had paid to the Trustee Company the sum of $627 approximately to enable the Trustee Company to pay outgoings levied in respect of Unit No 2 at 36 Wolseley Road, Woollahra. At the same time, the Executors estimated the then current, and future, liabilities of the estate in the sum of approximately $85,000, that sum being made up, as to $40,000 representing estimated executor's commission, as to $15,000 representing the Executors' costs of the proceedings which had been brought by the Deceased's widow and by the Respondent for provision out of the estate of the Deceased; as to $15,000 representing the Deceased's widow's costs of those proceedings; and as to a further $15,000 representing the Respondent's costs of these proceedings. On Ist August 1995, there was filed on behalf of the Deceased's widow a Summons in which she sought an order pursuant to the provisions of s7 of the Act making provision for her out of the estate and notional estate of the Deceased. Thereafter, on 10th November 1995, there was filed the Summons in these proceedings, in which Summons the Respondent also sought an order pursuant to the provisions of s7 of the Act making provision for his maintenance education and advancement in life out of the estate and notional estate of the Deceased. No doubt because of the Respondent's condition, the hearing of the two proceedings was expedited and the two applications were heard together, the evidence in the one, so far as was relevant, being evidence in the other. It would seem that it was thought likely that the Deceased's widow's counsel would advance an argument to the effect that the shares in the Home Unit Company were notional property and, thus, could be made the subject of an Order in favour of the Deceased's widow, since the Sir Moses Montefiore Jewish Home was joined as a party defendant to each of the applications, the joinder being said to have been on the basis that it did not challenge the entitlement of either of the Deceased's widow or the Respondent to an Order but that it might submit to the Court whatever arguments it thought fit in relation to questions of notional estate (see Appeal Book at 198). In this regard it should be noted that, of "the second corpus beneficiaries" referred to in CL19 of the Trust Deed, Annie Zukerman, Hyman Zukerman and Betty Zukerman appear all to have predeceased the Deceased; there was no one who met the description of "the third corpus beneficiary" or "the fifth corpus beneficiaries"; and the probability is that "the fourth corpus beneficiary" had been wound up after the sale of the insurance broking business; so that the only persons or organisations which could be the subject of any appointment under the URJ ZUKERMAN v ZUKERMAN (Powell JA) 15 Trust Deed were the Deceased's widow, the Respondent and "the alternate corpus beneficiaries" of which the Sir Moses Montefiore Jewish Home was one. The evidence which was tendered on the hearing on behalf of the Respondent was not extensive, being limited to the affidavits which had been sworn by the Respondent and his treating doctor together with an affidavit as to the cost which would be involved if a nurse were engaged to accompany the Respondent to the United States and to care for him while he was there as well as the cost which would be incurred in the event of the Respondent needing full time care when in Sydney, and a further affidavit providing details as to the cost which would be incurred for air fares and accommodation in the event that the Respondent were to go to the United States for treatment. None of the deponents of those affidavits was cross-examined. Although it is not necessary to record in any great detail the contents of the affidavits tendered on behalf of the Respondent, the following might conveniently be noted: 1. In the affidavit which he had sworn, the Respondent deposed (inter alia) as follows: "6. ILhave read the Affidavit of Cassy Workman, sworn on 22 November 1998. Ihave discussed the contents of that Affidavit previously with Dr Workman. I say that I am prepared to go to the US to undertake the course of treatment with the drugs as identified by Dr Workman. I have been informed by Dr Workman and I believe, as she has referred in her Affidavit, that, unless I can travel to the United States and take the benefit of new drugs as they become available, I have the life expectancy referred to by Dr Workman in her Affidavit. 7. I know nobody in the US I feel that I could not go on my own. I find that during the day, I become very weak and I am unable to proceed any further with my day until I lay down for a few hours and try to sleep. After a few hours of either rest or sleep, my energy levels usually return to allow me to proceed on with the day until I feel weak again and require further rest. I have also noted that any stress placed upon me by getting out of my normal daily habits causes me to become overwhelmed and disoriented and makes me afraid to go on doing something that I am not familiar with. 8. If I was to go to the United States, I feel I would require the assistance and company of a person trained in caring for persons with my sickness and who could be with me on a full-time basis. 16. I say that should the treatment in the US be successful and, in any event, for the remainder of my life, I would like to travel, especially to North America and to visit relatives which I have in Canada. 17. If I am able to work again, I would like enough money to start up a Dance Company which I could direct and outfit a studio space for the purposes of dance production." In the affidavit which she swore on behalf of the Respondent, Ms Peoples, the nursing supervisor of a nursing agency, deposed inter alia as follows: "3. I have been requested by Ms Diana Perla, whom I understand to be the Solicitor for Mr Gregory Zukerman, whether my organization can supply a registered nurse who could accompany Mr Zukerman in his travels to the United States for treatment for AIDS. 4. St Jude's can supply a registered nurse for Mr Zukerman, at the following rates: 16 UNREPORTED JUDGMENTS Day shift - $258 Saturday - $282 Sunday - $306 Plus $20 per night 'on call' charge The total amount for a week being, $2,018. 5. Mr Zukerman would be required to take out Workers Compensation Insurance for the Nurse as well as full travel insurance. 6. Should Mr Zukerman become incapacitated to the extent of needing a full-time Nurse in Sydney, the following are the rates: Day shift - $21.50 per hour Night shift - $22.50 per hour Saturday - $23.50 per hour Sunday - $25.50 per hour The total for each week, being $3,839.50. 7. Should Mr Zukerman require nursing care in the United States, a Nurse registered in the United States, would have to be employed by him. I am unaware of the cost involved." 3. In the affidavit which he swore on behalf of the Respondent, Mr Wolf, the managing director of a travel agency, provided evidence as to the economy class, business class and first class return air fares from Sydney to San Francisco, the business class air fare being $5,935; the cost of travel insurance; and the costs of accommodation in moderate, first class and superior first class hotels in San Francisco, the costs per person in a moderate hotel being of the order of $4100 per day or thereabouts. The only other matter of evidence which might conveniently be noted is that, in an affidavit which he swore on the morning of the hearing, Mr Wiseman, one of the executors, deposed inter alia as follows: "21. Iam a director of Milaine Pty Ltd and the executors intend to abide by items numbered 1, 2, 3 and 4 in the letter from the Deceased to his trustees dated 8 June 1994 a copy of which is annexure 'C' to the affidavit of Norma Patricia Zukerman sworn in these Proceedings on 31 July 1995." When he came to consider what, if any, Order should be made in respect of each of the applications before him, the Master instructed himself as to the principles to be applied in terms to which, as I understand it, no objection is taken on behalf of the Executors. Further, since no appeal has been lodged in respect of the Order made by the Master in favour of the Deceased's widow, no objection appears to be taken on behalf of the executors to the manner of the Master's application of those principles insofar as concerned the widow's application, the only objection that is taken being as to the manner of the Master's application of those principles to the Respondent's application. This latter comment notwithstanding, it should be noted that it is clear that the Master was of the opinion that the strength of the claims of the Deceased's widow and of the Respondent upon the Deceased's bounty far exceeded the strength of any claim which any of the ultimate residuary beneficiaries mentioned in CL9 of the Will may have had upon the Deceased's bounty and that, accordingly, to the extent to which it was necessary, in order that a proper Order might be made in favour of the Deceased's widow and the Respondent, the claims of the ultimate residuary URJ ZUKERMAN v ZUKERMAN (Powell JA) 17 beneficiaries must yield - to this extent, at least, as I understand it, no objection is raised by the Executors in respect of the Master's application of the relevant principles to the Respondent's application. In the event, the Master concluded that, if the Trustee Company were willing were to sell the shares in the Home Unit Company to the Deceased's widow, and if the widow to be provided out of the estate with funds, totalling $600,000, sufficient to enable her to acquire those shares and, as well, to provide her with a capital sum to meet contingencies, then the provision of those sums, together with the income to be paid to the Deceased's widow pursuant to the provisions of CLS(a) of the Deceased's Will, would ensure that the widow would be afforded adequate provision for her proper maintenance and advancement in life. He accordingly made an Order to that effect. In this regard it might be noted that, in an affidavit sworn by him on 8th February 1996, and tendered on the hearing of the appeal, Mr Wiseman deposed (inter alia) that the Trustee Company had resolved to transfer the shares which it holds in the Home Unit Company to the Deceased's widow for the sum of $500,000, and, further, that the Trustee Company had resolved to repay its debt to the estate of the Deceased in the sum of $232,237 out of the proceeds of that sale, each of the sale and the repayment of the debt being expected to occur in the then near future. When he came to deal with the Respondent's application the Master said:- "T turn to Gregory's claim. So far as the cost of treatment claim is concerned I am satisfied that there is evidence to substantiate the cost of the business class fares. There is also evidence establishing the need and quantum of the nursing care referred to. So far as the other matters are concerned these were not the subject of evidence but clearly there would be some appropriate amount payable. I have referred to the evidence given by Dr Workman and it is clear that there is no guarantee that there will be any successful treatment for Gregory. However the claim which Gregory has upon the deceased for Gregory's future maintenance and advancement in life is a substantial one and in terms far exceeds the claim upon the testator's bounty which has been advanced by the residuary beneficiaries. Accordingly, it seems to me that I should have regard to the claim by Gregory as one which would entitle him to the benefit of any assistance that can be given even if there is only a minimal expectation in the improvement in the quality or duration of his life. It would seem therefore that in respect of the medical treatment he should have the payment of a lump sum of $200,000 by way of maintenance in respect of his medical condition for the coming year. In particular I characterise this as maintenance for a period because, given the comments of the Court of Appeal in Wentworth v Wentworth (unreported 24 August 1995) I would not wish to shut out Gregory from any further application under s8 of the Act if that became necessary because of a change in circumstances. The executors have considered the future investment of the estate funds and this has been detailed in Mr Wiseman's affidavit of 30 November 1995. If one took out from the estate $600,000 for the plaintiff, Norma, and the Manly property, there is income left which will be received by the estate of some $37,000. This will be payable to Gregory and is more than sufficient to top up his income as requested by him. Indeed the claim for some $300,000 to be set aside seems to have been made in the context that no income has yet been paid to Gregory and no account taken of what he will receive in the estate. In addition the estate will receive back the loan from Milaine Pty Ltd of $232,237. This, after payment of the $200,000 legacy to Gregory, will leave approximately $390,000 18 UNREPORTED JUDGMENTS in the estate which will clearly provide sufficient income for Gregory to meet his everyday needs to the extent they are not met out of his own income." Although the Master did not, in that part of his judgment which I have set out above, record the basis upon which he determined upon the amount of the lump sum which he proposed awarding to the Respondent, the probability is that it was derived from the submission which had been advanced by the Respondent's counsel which submission had earlier been recorded by the Master in the following terms: "The needs by Gregory were, first, provision of a capital legacy of $210,916 and, second, the provision of a life interest in the sum of $300,000 to provide him with additional income. The calculations for the legacy were as follows: Nursing 52 weeks at $2,018 104,936 Flights Business class $5935 x 2 - $22,870 x 4 47,480 Accommodation 26 weeks at say $750 per week 19,500 General expenses 26 weeks at $1500 per week (Costs of transport, food, drugs, medical expenses, 39,000 personal living) $210,916" The source of some at least of those calculations may be found in the material provided by Ms Peoples and Mr Wolf in their respective affidavits. The reason for the Master's characterising the payment of $200,000 as "maintenance in respect of his medical condition for the coming year" seems to be the opinion which, in my judgment in Wentworth v Wentworth!, I expressed to the effect that, in order that provisions of s8 of the Act might be invoked, an applicant needed to demonstrate, first, that the Order, or the last Order, for provision which was made was an order for a continuing provision; and, second, that, whether by reason of inflation, or some accident, or illness, or other cause, the income derived from that order, or the income derived from that order coupled with such income as the eligible person is then capable of earning, is inadequate to provide for the maintenance education or advancement in life of the eligible person, an opinion which, given the bases upon which they determined the appeal, neither Cole JA nor Giles AJA found it necessary to consider. This being so, the form of the Order which the Master was ultimately to make is difficult to understand, as it did not take the form of, either, an interim order, or, an order for periodic maintenance, the former of which forms of order would seem more appropriate to the provision which the Master contemplated making. In the event, the formal Order which was made on 11th December 1995 was to the effect that the Respondent "receive by way of legacy for his maintenance out of the estate of the deceased a sum of $200,000". Thereafter, on 15th December 1995, there was made an Order that the operation of the Order be stayed until 11th April 1996 upon the conditions, first, that, on or before 21st 1. (unreported 24 August 1994) URJ ZUKERMAN v ZUKERMAN (Powell JA) 19 December 1995, the executors pay to the Respondent, on account of the Order, the sum of $60,000; and, second, that the Respondent lodge his application for a visa to travel to the United States on or before 21st December 1995. In the affidavit, to which I earlier referred, sworn by him on 8th February 1996 Mr Wiseman deposed (inter alia) that, on 21st December 1995, the executors had paid to the Respondent out of the estate the sum of $60,000. In an earlier affidavit, sworn by him on 19th January 1996, and tendered on the hearing of the appeal, Mr Wiseman deposed (inter alia) that, having considered the Orders made by the Master, the directors of the Trustee Company had resolved that it was their then intention, as such directors, which intention was subject to any unforeseen circumstances, to cause the Trustee Company to pay the nett income earned upon the funds, which it would have after the completion of the sale of the shares in the Home Unit Company and the repayment of the debt to the estate, to the Respondent for his life. In the Notice of Appeal which was filed on their behalf on 14th December 1995 the Appellants raised six grounds of appeal, of which only five, they being: "1. The Master erred in holding that the provision made for the Respondent out of the estate, or notional estate, of the deceased, or during the lifetime of the deceased, was inadequate for the Respondent's proper maintenance and advancement in life. 2. The Master erred in failing to take into account the entitlement of the Respondent to share in the estate of the deceased pursuant to the terms of the will of the deceased. 3. The Master erred in failing to take into account the material and financial circumstances of the Respondent. 4. The Master erred in making further provision, of a capital nature, or otherwise, for the Respondent, out of the estate and/or notional estate of the deceased. 5. The Master erred in taking into account matters which were not the subject of evidence." were pressed on the hearing of the appeal. So far as is now relevant, the orders sought in the Notice of Appeal were: "2. The Appeal be allowed. 3. The Plaintiff's Summons be dismissed. 4. The Respondent to pay the costs of the Appeal and of the hearing.' However, as I have earlier recorded, on the hearing of the appeal the Appellants' counsel did not maintain so absolute a stand, but, rather, submitted that, even if the Master had been correct in deciding that inadequate provision had been made for the Respondent, the appropriate Order was, not that which the Master made, but, either, an Order for staged payments to be made to the Respondent or, alternatively, an Order that the application stand adjourned, perhaps with some small provision in favour of the Respondent meantime, to await a report on the outcome of such medical treatment as the Respondent might undertake. When the appeal was called on for hearing, Mr RC McDougall QC appeared for the executors, while Mr GJ McVay appeared for the Respondent. The arguments which Mr McDougall advanced in support of the first ground of appeal appeared to proceed along the following lines: 1. The only needs which the Respondent had demonstrated were: (a) the need for a sufficient sum to enable him to undertake the treatment in the United States proposed by his treating doctor; (b) the need for a sum sufficient to enable him to discharge his debts; and 20 UNREPORTED JUDGMENTS (c) the need for additional income; 2. Insofar as (a) and (b) were concerned, the Respondent had presently available a sum of $250,000, which sum was sufficient to discharge both the likely costs which would be incurred if the Respondent were to travel to the United States for treatment, and, as well, the Respondent's then known debts; in addition, the Respondent was entitled to receive from the estate the then accrued, but unpaid, income of residue which sum, so it was suggested, was about $40,000; 3. While utilising the sum of $250,000 for the purposes of (a) and (b) would significantly reduce the amount of the Respondent's then income, the income to which, if no Order were made in favour of the Deceased's widow, the Respondent would have been entitled under the Will would have been of the order of $80,000; 4. Even if the Orders proposed by the Master were made - which Orders would have the effect of substantially reducing the residuary estate and, thus, the income to which the Respondent would be entitled under the Will - the effect of those Orders would be that, for the first time, the Trustee Company would have available to it a significant sum of money which could be invested to provide income, which income could be made available by the Trustee Company to the Respondent. 5. In that event, even though the Respondent's capital would have been significantly reduced, or even exhausted, the Respondent would have been able to undergo the proposed treatment in the United States, he would have a secure home and a more than adequate income with which to meet his needs, it following that he had failed to demonstrate that the provision made by the Deceased for the Respondent both before the making of, and in, his Will was inadequate to provide for his proper maintenance education and advancement in life. Iam unable to accept the correctness of this submission, which submission if given effect to, would require the Court - as was sought in the Notice of Appeal - both to allow the appeal and to dismiss the Respondent's application. It is to be observed: 1. That if the Respondent were obliged to utilise, or exhaust, his capital in the way suggested, the result would be merely that an immediate need for funds would have been met, and that the Respondent would have been left without any significant sum of money to provide for any further medical treatment which might be required, or to meet any unforeseen contingencies which might arise and, further, that in the event that the proposed medical treatment were successful in significantly prolonging the Respondent's life, he would be left without any capital with which to set himself up; 2. That if, as, in fact, occurred, the Orders proposed by the Master were to be made and given effect to, there would be a significant reduction in the Respondent's income, first, because of the use of his capital; and second, because of the significant reduction in the size of the residuary estate, which reduction would not be remedied even if, as suggested, the Trustee Company appointed the future income of the trust fund to the Respondent. Given the size, and make up, of the Deceased's estate, even after the making of the Orders proposed by the Master in favour of the Deceased's widow; the relationship between the Deceased and the Respondent; the Respondent's financial position and his then need; and the strength of the Respondent's claims upon the Deceased's bounty, as compared with the strength of any claim which any of the ultimate residuary beneficiaries might have had upon the Deceased's URJ ZUKERMAN v ZUKERMAN (Powell JA) 21 bounty, it is my view that the Master did not err when he held that, in all the circumstances, the Respondent had been left without adequate provision for his proper maintenance eduction and advancement. The argument which Mr McDougall sought to advance in support of grounds 2 and 3 in the Notice of Appeal appeared to proceed along the following lines: 1. For the reasons advanced in support of the first ground of appeal, the Master erred in the discretionary exercise which flowed from his apparent conclusion that the Respondent had been left without adequate provision for his proper maintenance education and advancement; 2. When he came to exercise his discretion the Master: (a) failed to consider the income which, so it was submitted, would be made available to the Respondent from the trust fund; and (b) failed to have regard to the fact that the Respondent had tendered no evidence as to the extent, and value, of his interest in the shares in Mena Flats Pty Ltd; 3. Alternatively, the provision made by the Master - although in form final but seemingly on an interim basis - represented a wholly erroneous estimate of what, in the circumstances, was an adequate provision for the Respondent's proper maintenance education and advancement. Iam unable to accept this argument for the following reasons: 1. So far as the first matter is concerned, it is sufficient, in my view, to repeat what I have already written in relation to the first ground of appeal; 2. So far as the second matter is concerned, it seems to me: (a) that the Master did not fail to consider income which might be made available to the Respondent from the Trust. On the contrary, the Master did appreciate that, as the result of the Order which he proposed to make in favour of the widow "part of the value of the unit will be distributed early by the trustees" - it being noted, here, that, contrary to the submission advanced on behalf of the Appellants, the directors of the Trustee Company had not, prior to the hearing, resolved to pay the income of the trust fund to the Respondent, the only resolution which at that time had been made being that the Trustee Company should comply with the requests contained in paral to para4 in the letter of instructions from the Deceased; (b) while it is true to say that the Respondent had not tendered evidence as to the extent, and value, of his shares in Mena Flats Pty Ltd, it is not true to say that the Master paid no regard to that fact, since, in the course of his judgment, when dealing with the Respondent's financial position, the Master recorded that "he lives in a company title flat the shares in which are held by him jointly with his mother Vera Zukerman. There is no evidence before the Court as to the value of this unit and no doubt it is permanent accommodation available to him." 3. So far as the third matter is concerned, it is to be recorded that Mr McDougall did not, in his written submissions, seek to demonstrate the grounds upon which it was said that the amount of the provision made by the Master represented a wholly erroneous assessment of what was adequate (above)) and attention was drawn to the fact that, although that submission contemplated that the Respondent would be in the United States only for periods totalling twenty-six weeks, the amount suggested for nursing care represented an amount appropriate for fifty two weeks, that it was suggested that the amount in fact allowed to the Respondent should have been, not $200,000, but $150,000. There are, as it seems to me, several answers to that submission, they being: 22 UNREPORTED JUDGMENTS (a) the amount, in fact, allowed by the Master was some $11,000 odd less than proposed; (b) the amount proposed for nursing, even on a basis of fifty-two weeks, represented only the cost of a nurse for one shift a day plus an on call charge, the cost of full-time nursing care, if it became necessary, being virtually double that cost; (c) it is anything but certain that the Respondent would be required to spend only twenty-six weeks in the United States in the first year; (d) such material as is in the Appeal Book would suggest that the amount proposed for accommodation for the Respondent and an accompanying nurse is very modest indeed. In all the circumstances it seems to me that the Appellants have failed to demonstrate that, in this respect, the provision made by the Master represented a wholly erroneous estimate on his part. The argument which Mr McDougall sought to advance in support of the fourth ground of appeal appeared to proceed along the following lines: 1. The evidence of the Respondent's treating doctor did not establish that the proposed treatment would in fact ameliorate the Respondent's condition, and, still less, that the result of that treatment, or treatment with drugs presently under development and likely to become available, would substantially prolong the Respondent's life; 2. It followed that there was a high probability that the amount of the provision which the Master made in favour of the Respondent would, in fact, be likely to benefit the Respondent's estate rather than the Respondent himself (reference was made to White v Barron?); 3. In the circumstances where, so it was submitted, the Respondent had no demonstrated need that he could not meet out of his own resources, and that he had, in addition, substantial resources available to him from the estate, it was not appropriate for the Master in the exercise of his discretion to make a lump sum order in favour of the Respondent; rather, even assuming that the Master was correct in finding that the Respondent had been left without adequate provision for his proper maintenance education and advancement, the more appropriate course to take was, either, to order that the application stand adjourned to await a report on the outcome of such medical treatment as the Respondent might undertake, or, alternatively, to make provision for such costs as the Respondent might incur being met by staged payments. I am unable to accept this argument. The passage which appears at the commencement of that part of the Master's judgment which deals with the Respondent's claim which I have set out above (see pages 22-23 (above)) makes it abundantly clear that the Master was only too well aware that there was no guarantee that there would be any successful treatment for the Respondent, and that the effect of the provision which he proposed might well substantially reduce the amount which would otherwise be available to the ultimate residuary beneficiaries, despite which fact he concluded that the Respondent's claim was "one which would entitle him to the benefit of any assistance that can be given even if there is only a minimal expectation in the improvement in the quality or duration of his life", a sentiment with which I wholeheartedly agree. To that I would add that if as - contrary to the submission advanced by Mr McDougall in support of the fifth ground of appeal - it was, as it appears to have been, the wish of the Respondent to travel to the United States for treatment as soon as that 2. (1979-1980) 144 CLR 431, 444 per Mason J, 458 per Wilson J URJ ZUKERMAN v ZUKERMAN (Powell JA) 23 could be arranged for him, it was important that he have the funds which would enable him to do so, at short notice, as soon as treatment had been arranged, and to permit him to remain in the United States until that treatment - whatever its outcome - be completed. What I have just written will indicate that the only argument which Mr McDougall sought to advance in support of the fifth ground of appeal was that the evidence did not establish that it was the Respondent's intention to travel to America to undertake medical treatment. As to this argument, I will say no more than, in my view, it was open to the Master, on such material as was before him, to find that it was the Respondent's intention so to do. The Appellants having, in my view, failed to make good any of their challenges to the Order made by the Master, I would in the normal course have done no more than propose that the appeal be dismissed with costs. However, given that the Master appears to have intended that the provision which he was to make be but merely an interim provision by way of maintenance, and given the view which I expressed in Wentworth v Wentworth as to the circumstances in which an eligible person might invoke the provisions of s8 of the Act, I think it desirable that the Order made by the Master be varied so as to reflect what I understand to have been his intention, but that otherwise the appeal be dismissed with costs and the stay granted on 15th December 1995 be discharged. For these reasons, the Orders which I would propose are as follows: 1. Order that the Orders made by Master Macready on 11th December 1995 be set aside and that in lieu thereof there be made Orders: 1. That, in addition to the provisions made for him under the Will of the Deceased, the Plaintiff be paid, pursuant to the provisions of s7, s9(5) of the Family Provision Act 1982, interim provision out of the estate of Deceased in the sum of $200,000; 2. That the balance of the Plaintiff's application for provision out of the estate of the said Deceased stand adjourned generally, to be restored on date to be fixed on application to the Master; 3. That the Plaintiff's costs up to and including the date of entry of the minute of the orders made by the Master on 11th December 1995 be paid out of the estate of the Deceased; 4. That the First Defendants' costs of the application up to and including the date of entry of a minute of the orders made by the Master on 11th December 1995 be paid or retained at the case may be out of the estate of the Deceased. 2. Order that the appeal otherwise be dismissed. 3. Order that the stay granted on 15th December 1995 be discharged. 4. Order that the Respondent's costs of the appeal, such costs to include the costs incurred in relation to the application for a stay, be paid out of the estate of the Deceased. 5. Order that the Appellants' costs of the appeal, such costs to include the costs of the application for a stay, be paid, or retained, as the case may be, out of the estate of the Deceased. Counsel for the appellants: RC McDougall QC Solicitors for the appellants: Rosenblum and Partners Counsel for the respondent: GJ McVay 24 UNREPORTED JUDGMENTS Solicitors for the respondent: Diana Perla and Associates (Bondi Junction)