MASSINGHAM v MASSINGHAM [1996] NSWCA 343

MASSINGHAM v MASSINGHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY and MEAGHER JJA 3 June 1996, 27 June 1996

[1996] NSWCA 343

WILLS — Testators Family Maintenance Act S3 — statutory interpretation — application of the concept of moral duty in light of statutory provisions.

The appellant, the older of the testator's two sons, born in 1928, had worked on his father's property, "Aylmerton", until 1953, by which time he and his brother were in partnership with their father. The partnership was dissolved following the appellant's having hit his father in an argument. The father thereafter made some provision for the appellant; however, the appellant and the testator became more or less completely estranged during the 1960s. The father died in 1981 leaving "Aylmerton" to the younger son, who had remained in partnership with his father until his death. The testator left nothing to the appellant. At the time of the testator's death the appellant owned his own home, had a stable job with no set retiring age limit, minor assets and was in a superannuation scheme.

The appellant sought provision from the testator's estate under the Testators Family Maintenance Act.

The Master, applying Coates v National Trustees Co Ltd (1956) 95 CLR 494,

ON APPEAL: The appellant's argument was that it was an error for the Master to have referred to the moral duties of the testator and for that and other reasons his exercise of discretion had miscarried. HELD: (1) The Master had used the concept of "moral duty" as a shorthand way of referring to the relevant statutory provisions, as in Permanent Trustee Co Ltd v Fraser (1995) 35 NSWLR 24; adopting the way in which Fraser applied Singer v Berghouse (1994) 181 CLR 201, there was no substantive error in the Master's approach. (2) The Master appeared to have made a factual error in respect of the value of the appellant's superannuation, requiring the court to consider for itself the application of s3 to the facts. (3) Upon consideration of s3 in light of the facts of the case and the history of the appellant's relationship with the testator and the respondent, it could not be said that the applicant was left without adequate provision. The Master was broadly right in his approach notwithstanding the factual error.