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. ORDERS Appeal dismissed with costs. Mahoney P I agree with the judgment of Priestley JA. In deference to the argument of counsel in this appeal, I shall add some observations of my own. As the result of the decision of the High Court in Singer v Berghouse (1994) 181 CLR 201, the determination of an application under the Family Provision Act 1982 involves two stages: the jurisdictional stage and the stage at which the Court determines whether and what order should be made. It follows from the decision of the Court in that case that in each stage there is involved a discretionary decision by the Court and that accordingly the principles for review of discretionary decisions apply to an appellate review of either of those stages. The discussion in Singer: at 208-209; illustrates that "discretion" as used in this context has a number of different meanings: at least, it describes a number of things which are significantly different. Thus, in that context it includes the 2 UNREPORTED JUDGMENTS application of a term ("adequate" or its cognates) which requires the Court to adopt a standard, viz, of what is adequate and to determine whether what has been done in the particular case meets that standard. Where used in the second stage of a proceeding under this legislation, in exercise of the power granted by "may", the discretion is of a different kind. The Court must determine whether an order should be made in favour of the applicant. In determining that, does not merely determine a standard and apply it; it takes into account all of the (relevant) circumstances and decides, as a matter of justice, whether an order should be made: s9(2)-s9(4). These are not the only forms of "discretion". In "The Judge, Discretion and the Criminal Trial": Rosemary Pattenden, at 1-10; reference is made to a number of situations which, it is suggested, involve the exercise of a discretion. Whether each of these is, in the sense here relevant, a discretion and whether to each of them the principles referred to in, eg, House v The King (1936) 55 CLR 499 should apply is a matter to be determined when each case arises for consideration. Second, I come to the categorisation or description of the second stage in the proceeding. As I have said, the Court at this stage determines whether an order is to be made. This is determined, not as a matter of judicial whim, but by reference to the objectives of the legislation and matters which are relevant in determining what is to be done in each case. Factors such as these have, in the past, been described compendiously by terms such as "moral duty" and the like. That term does not, of course, apply in describing what is to be taken into account in the first stage of the proceeding. As the majority of the Court in Singer pointed out, the Court is there concerned only with whether the provision for the plaintiff is "adequate". Concepts of "moral duty" and the like (however they are to be formulated and described) are relevant only at the second stage. In Kearns v Ellis (Court of Appeal, 5 December 1984, unreported) I discussed the objectives of the Act and the considerations by reference to which this determination is to be made. In general, what I there said is, mutatis mutandis, applicable to the exercise of the present discretion under the here relevant legislation. In view of what has been said, it is useful to pursue the meaning of the term "moral duty" and why it was adopted. In this regard I am indebted to what was said by Kirby P, Handley JA and Sheller JA in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24. One must in this regard determine the reason why the Act was passed and the ends which it seeks to achieve. The Act makes it clear that the fact alone that the plaintiff has been left without "adequate provision" is not sufficient to justify the making of an order. That is why the second stage is made discretionary: the Court may refuse an order even though the plaintiff has been left without adequate provision. Accordingly, it is proper to infer that the Act is directed not merely to the relief of indigence or poverty, genteel or otherwise. Matters of that kind are relevant but the structure and terms of the Act suggest that, for an order to be made, there should be something more. The "something more" is what was intended to be conveyed by terms such as "moral duty" and "wise and just testator". Those phrases direct attention, I believe, to the community feeling amongst right thinking people that a testator owes, or may in the circumstances owe, a duty to leave property by will to certain of his family or those dependent on him during life. There is, I believe, a community feeling amongst ordinary reasonable people that a good man would URJ MASSINGHAM v MASSINGHAM (Priestley JA) 3 act in that way; if the circular nature of the reasoning may be emphasised, a man who did not so act would not be regarded as wise or otherwise acceptable. The community feeling is, in my opinion, not based upon the view that such persons have a "right", legal or moral, to receive bounty from such a deceased. But something, though of a lesser degree, is seen to be involved. I accept that "moral duty" may be inappropriate to describe the factors relevant to the first part of the decision. It has been argued that it is inappropriate to describe the discretion involved in the second part of the decision. If it is misleading to use it, in relation to the second part, to describe the kind of considerations to which I have referred: see Singer v Berghouse at 209; it will no doubt be necessary to craft a substitute phrase to indicate that complex of considerations intended to be referred to by it. Accordingly, if this Court must exercise its own discretion at the second stage, I would exercise it by reference inter alia to considerations of the kind to which Ihave referred: see ibid at 210. For the reasons given by Priestley JA, I am of the opinion that, in the proper exercise of the statutory discretion, the Court should come to the same conclusion as that to which the Master came. The appeal should be dismissed with costs. Priestley JA This appeal is the outcome of events which took place long ago and over a long period. One date which the parties regard as critical was 1953 when the appellant, the elder son whose father left him nothing in his will when he died in 1981, hit his father in the course of a quarrel. The father was a farmer and grazier, his principal asset being his property "Aylmerton'". In his will the father (whom I will call the testator) left "Aylmerton" to the younger son. The appellant sought provision from the testator's estate under the Testators Family Maintenance Act (the Act) by a summons filed 18 March 1983 which was heard in 1993 by Master McLaughlin. On 20 May 1993 the Master ordered that the summons be dismissed. For the appellant, it was acknowledged in this court that the Master's decision was discretionary, but it was submitted that he had made mistakes of fact and that because of that, and otherwise, his exercise of discretion had miscarried. The appellant had three elder sisters and one younger brother. The eldest sister died in 1936. The other four children are all still alive. The testator made bequests to his two surviving daughters. He left nothing to the appellant. The daughters have made no claim against the testator's estate. The appellant was born in 1928 and the brother, the respondent to the appeal, in 1931. The family was brought up on "Aylmerton", which was approximately 3,500 acres, about sixteen kilometres south east of Binnaway, a small town itself thirty-two kilometres south of Coonabarabran. All the children worked on the property. At an early age both sons began to do all the jobs necessary to keep going a property the main business on which was the running of sheep. In succession, each went, at about the age of sixteen, to the Farrer Memorial Agricultural High School at Nemingha near Tamworth, as a boarder and they then worked on the property together with the testator. In 1950, or perhaps 1948, (the date was not conclusively established), the testator took the sons into partnership. In about 1950, 1,316 acres adjoining "Aylmerton", consisting of two parcels, one of 659 and the other of 657 acres, was acquired. In 1953 a further 2,069 acres was acquired for 2,100 pounds. The Testator saw to it that the registered proprietors of these lands, known as 4 UNREPORTED JUDGMENTS "Kurrajong Hills", were the appellant and the brother. The purchase money was advanced by the testator. The partnership business of the father and his two sons was carried on on "Aylmerton" and "Kurrajong Hills" in conjunction. In the proceedings before the Master, different accounts were given by the two brothers of their lives with their father up to the time of the dissolution of the partnership in late 1953. It seems plain from both accounts that the testator and his younger son got on with one another better than either did with the appellant. It is also plain that quite hostile relations developed between the testator and the appellant over a long period leading up to the events of late 1953. What is not clear is whether, as the appellant sees it, his father and brother were principally responsible for this state of affairs, or whether, as the younger brother says, the unhappiness was in large part the fault of the appellant. Whatever the underlying causes may have been, it happened that near the end of 1953 a quarrel flared up between the testator and the appellant which ended with the appellant hitting his father. This led to an almost immediate dissolution of the partnership. On dissolution, "Kurrajong Hills" was partitioned between the two sons. The appellant became the proprietor of the 659 acre parcel and the respondent of the 657 acre parcel. The appellant took 100 acres of the 2,069 acre parcel and was paid 1,050 pounds, that is, half its purchase price earlier that year. The respondent took the balance of the 2,069 acre parcel. The appellant continued to live at "Aylmerton" for a comparatively short period after the quarrel at the end of 1953. Next to "Kurrajong Hills" were two parcels of land, one of 637 acres, the other of 215. The appellant wanted to buy these. The testator lent him 2,000 pounds so that he could. The testator secured the loan by mortgage over all of the appellant's lands with the exception of the 215 acre parcel. At the same time the testator paid the appellant 1,000 pounds for his 100 acres of the 2,069 acre parcel. This meant the appellant at this stage had 1,511 acres. He went to live in a cottage on the 215 acre parcel and tried to make a living on his property. He called it "Kurrajong Hills" and the respondent called his property "Bugle Point". For some years the testator and the respondent carried on their business on "Aylmerton" and "Bugle Point" while the appellant ran his adjacent "Kurrajong Hills" property. There was some cooperation in the working of the properties. For example there was an arrangement under which stock of the testator-respondent partnership was agisted on "Kurrajong Hills". In the proceedings before Master McLaughlin differing versions were given by the appellant and the respondent of the terms of this arrangement and of various things that happened pursuant to it. The agistment arrangement came to an end in about 1964. Again, there are different versions of what led up to this. Again, on any version, there was a degree of hostility between the appellant on the one hand and the testator and the respondent on the other. The testator's wife and the mother of the parties died in October 1969. Some time before that the testator had begun proceedings against the appellant, because the appellant was in default under the mortgage. The parties called these proceedings foreclosure proceedings, probably a little inaccurately. According to the appellant, the mother interceded with the testator, who did not continue with the foreclosure proceedings for the time being. The appellant had made no money payments under the mortgage to his father and was undoubtedly short of money at this time, but the parties in the subsequent proceedings assigned different reasons for this. According to the respondent the appellant was a poor farmer who did not give enough attention to his property and stock. The appellant said he was URJ MASSINGHAM v MASSINGHAM (Priestley JA) 5 a good farmer, and that his father and brother wrongly put it about in the district that he was not competent. Short of funds he was, and in 1966 found employment with the State Railway. He has remained in that employment to the present time. In 1968 he went to live in a house in Binnaway. He has not lived nor worked on his land since that time. Following the death of the testator's wife, the testator again went on with "foreclosure" proceedings. These culminated in the appellant's lands being put to public auction in 1971 (with the exception of the 21S acres not subject to the mortgage). The respondent bought them at the auction for $3,171. In 1971 the respondent married. His wife is almost blind. In 1974 the appellant also married. His wife suffers severely from epilepsy. There are no children of either marriage. In 1979 the testator was taken to hospital where, on 14 January 1981, he died, aged ninety, having made the last of many wills on 18 November 1980. It seems that from the time the appellant went to live in Binnaway in 1968 there was an almost complete estrangement between him and the testator, punctuated by the "foreclosure" proceedings. In the period the testator was in hospital prior to his death the appellant visited the testator on a number of occasions and, to a degree, they became reconciled. The appellant's summons for provision from the testator's estate was filed about eight months later than the time limit under the Act allowed. The Act permitted the court to extend the time. The appellant's solicitor had informed the executor's solicitor of the appellant's intention to make an application, before probate was obtained. The appellant's solicitor assumed the testator's solicitor would let him know when probate had been granted. The lateness of the appellant's filing resulted from the non fulfilment of this assumption. When the appellant and his solicitor belatedly discovered that probate had been granted in July 1981 they acted quickly to get the proceedings under way. The summons was filed and served and by the end of June 1984 the principal affidavits on both sides had been filed. The case then went into a deep sleep. It came to life again at the end of 1991 when the respondent's solicitor raised questions with the appellant's solicitor about the appellant's intentions concerning the proceedings. As a result further affidavits were filed in 1992, and the case was heard in February and May 1993. The Master published his reasons and dismissed the appellant's summons on 20 May 1993. The Master began his reasons by referring to the appellant's first claim in his summons, that time for the making of the application be extended. Later, after briefly discussing the question of the delay in the filing of the summons, he said (correctly in my view, in the circumstances) that the most significant factor in regard to the extension of time sought was the strength of the appellant's case, which he then considered. Although in form the proceedings remained an application for an extension of time, the evidence and issues before the Master were, as the hearing developed, as full as if the substantive application were being heard. The Master's conclusion was that if an extension of time were granted the appellant would nevertheless fail to obtain any relief. The Master's reasons make it plain that his decision was on the merits of the appellant's substantive claim. The Master reached his conclusion on two bases. First, he did not think the testator had had any moral duty to make provision for the appellant by his will in view of the appellant's financial and material circumstances, which, said the Master, did not display any specific need of the appellant at the time of the 6 UNREPORTED JUDGMENTS testator's death or later. The Master thought that lack of need was shown both by the actual circumstances of the appellant and that the considerable delay in bringing the matter on for hearing was some confirmation of this. The Master's second basis was that if he were wrong in regard to need and the appellant were to be considered to have established some form of need, nevertheless in exercising discretion pursuant to s3 of the Act he had also to consider other persons to whom the testator owed a moral duty or who might have had a claim upon the testator's bounty. He then gave reasons for reaching the opinion that "the moral duty which the deceased owed to the defendant was such that the gift of the property 'Aylmerton' made by the deceased to the defendant should not be disturbed for the purpose of giving any benefit to the plaintiff'. In arriving at his opinions, the Master did not attempt to adjudicate upon the rights and wrongs of the disputes within the family leading up to the estrangement which set in more or less permanently following the auctioning of all but 215 acres of the appellant's land. There would have been little point in his attempting to do so. The father and the mother were both dead. The events were very old. The brothers' views about one another and the past were fixed, strongly held, and would undoubtedly make it difficult for a judicial fact finder to be confident in whatever conclusions were reached on their competing versions. The parties themselves appear to have realised this because, this court was informed, at the hearing before Master McLaughlin an agreement was reached between counsel and communicated to the Master that neither side would cross-examine the other's witnesses on their differing recollections as contained in their affidavits of some of the past contentious incidents. In regard to these the parties simply agreed they were at issue. In any event, the parties were in substantial agreement about the broad aspects of the history. In saying what he did about the lack of need of the appellant, the Master was relying on some quite specific evidence. At the time of the testator's death the appellant owned the 215 acres, still called "Kurrajong Hills", upon which there was a house and some livestock; a house property in Binnaway together with two adjoining blocks of land; some leasehold land; and a motor vehicle. He was also in permanent employment with the State Rail Authority, was entitled to superannuation from that employer and had a life policy (which he could surrender for $10,000 upon retirement) with the National Mutual Life Assurance Co Ltd. He was married, with no children. The real estate, both rural and in town, was of modest value. The amount of the entitlement to superannuation as at the date of the testator's death, did not appear in the evidence. Looked at from the testator's point of view, when he was making his will in November 1980 and when he died shortly afterwards, the appellant's position was modest but, on a small scale, secure. The testator had made provision for the appellant during the testator's life time, from 1950 to 1953 and then later through to the 1960s, until the commencement of the final fairly complete estrangement began during the 1960s. The Master also, following the High Court decision of Coates v National Trustees Co Ltd (1956) 95 CLR at 494, considered the appellant's situation as it was at the time of the hearing. No objection was taken to this at the hearing nor in the appeal. In reaching his decision concerning the appellant's need the Master seems to have relied on what the appellant said in an affidavit he swore on 8 February 1993, in particular, on the following, from para6 and para7: URJ MASSINGHAM v MASSINGHAM (Priestley JA) 7 "6. I intend to keep working with the State Rail Authority as long as possible. There is now no fixed retirement age. I as offered early retirement in about 1987 but elected to continue working... the State Authorities Superannuation Scheme has advised me that my benefits are approximately $127,488... 7. I am also entitled to the proceeds of a superannuation policy No N312405/07 with National Mutual. The value of that policy as at 29 January 1993 is $9,579.52." This evidence seems to be the source of the following passage in the Master's reasons: "The plaintiff is entitled to a very considerable sum by way of superannuation. He is also entitled to an amount in excess of $100,000 from the National Mutual Insurance Co Ltd, upon the termination of his employment with the State Rail Authority. It is solely by choice of the plaintiff that he does not retire from his employment and receive the proceeds of that insurance benefit and receive the superannuation to which he is entitled" In the appeal, three main lines of argument were presented for the appellant. One was that it was an error for the Master to have referred, as he did in a number of places in his reasons, to the moral duties of the testator and to have shaped the questions that he had to answer in dealing with the appellant's case as being whether the testator had had a moral duty to provide for the appellant in his will and whether the making of any provision for the appellant from the testator's estate would unduly disturb the testator's discharge of moral duties to others that he had effected by his will. This submission was based on the comment made by Mason CJ, Deane and McHugh JJ in their joint reasons in Singer v Berghouse (1994) 181 CLR 201, to the effect that references to "moral duty" in cases of the present general kind are of doubtful assistance in a court's coming to grips with the requirements of the statutory provisions of the relevant Act: see at 209. In Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, this court discussed the impact of this comment upon the long standing practice in New South Wales, based on a continuous chain of High Court and other authority, of using the notion of "moral duty" for the exact purpose for which, in Singer, it was said not to be useful: for a collection of some of those authorities see per Handley JA in Fraser at 33. All the members of this court in Fraser were of opinion that the comment in Singer doubting the usefulness of the "moral duty" concept in cases like the present was an obiter dictum. Kirby P nevertheless was of opinion that it should be treated by courts in this State as binding. Sheller JA likewise thought that Singer was "an authoritative restatement if the approach that should be taken by the Court" (at 46). Handley JA dissented from the views of the other two. It might be possible to distinguish the present case from Fraser on the basis that Fraser was decided on the Family Provision Act 1982, whereas the present case concerns an application made under the older and now repealed Testators Family Maintenance Act. However, no distinction of this kind appears to have been made either in Singer or Fraser. In view of what the majority said in Fraser, it seems that the appropriate course for this court to take is to regard itself as bound to follow it so long as it stands. It so happened that Fraser was also an appeal from Master McLaughlin. In his reasons in that case he used expressions relating to "moral duty" in the manner then regarded as quite acceptable and useful, in terms substantially the same as those he used in the present case, which is also a pre-Singer case. In Fraser, Kirby P, although acknowledging the binding authority of what the High Court said in 8 UNREPORTED JUDGMENTS Singer, nonetheless did not think the Master should be reversed, because he took "the master's repeated references to 'moral duty'... to be simply a shorthand phrase" for the relevant statutory words in the operative provisions of the Family Provision ACJ (at 31). Sheller JA, after also indicating (at 46) that the High Court's words in Singer must be treated as "'an authoritative restatement" of the proper approach, added that he did not think "this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression had generally been understood or used by the courts" (also at 46). Having considered the use Master McLaughlin made of the concept of "moral duty" in light of the relevant statutory words in the Act, it seems to me that he was using them as a shorthand way of referring to the statutory provisions and that his approach was the same in substance as that mandated by the High Court in Singer. In my view it is clear that had the Master used the Singer approach he would have arrived at exactly the same conclusions as those he did under the older rubric. I do not think the appellant's first point should succeed. The second point has more weight. In the passage cited (at at 8-9 above) from the Master's reasons, he appears to have made a factual error which might reasonably be regarded as of some significance. In speaking of the superannuation to which the appellant was entitled, he called it "a very considerable sum". He did not specify the amount. He then did specify an amount in regard to the National Mutual Insurance policy, which according to the evidence was at that time worth approximately $10,000 to the appellant if he then retired. On the figures before the Master, the value of the two items totalled approximately $137,000. Although it is not completely clear, it seems probable from the Master's way of expression that he was thinking the two items together had a value of $227,000. This would be a significant misapprehension of the factual situation of the appellant. It is possible that the $100,000 figure was a slip of the pen and was intended to represent the actual figure of approximately $10,000. It is also possible that the Master had reversed the values of the two items. Nevertheless, the words he wrote seem sufficiently clear to make it preferable for this court to take them literally and to regard the Master as having made a mistake on a material matter of fact in the course of deciding how he should exercise his discretion. It therefore seems to me that this court should treat the exercise of discretion below as having miscarried and consider anew how the discretion should have been exercised on the state of facts as they stood before the Master. In doing this, I will take into account what was the third head of the appellant's argument. This was, to put it in a less refined way than it was put by counsel, that the facts themselves demanded a different result; to have arrived at the decision that the Master did on the facts before him showed, it was submitted, that there must have been an error of some kind in the decision making process. In support of this the case was put that the appellant had devoted his life to working on his father's property until the occasion of the dissolution of partnership at the end of 1953, that this had been done, with very little reward, on the implicit basis that the father would in due course provide equally for his two sons, that the unhappy relationship between the father and the appellant had not brought to an end the circumstances which should have led the testator at the last to provide for the appellant and that the result of the testator's dispositions was to leave the younger URJ MASSINGHAM v MASSINGHAM (Priestley JA) 9 son in possession of the whole property and in a moderately comfortable position and to leave the appellant with nothing. The facts as I have earlier set them out describe in outline the history of what happened with the testator and his two sons. The outline shows some features of the history about which there can be no question. The sons were being treated equally, in a financial sense, until the dissolution of partnership at the end of 1953. The relations at that time between the testator and his eldest son were bad. The appellant himself said that he didn't like his father and his father didn't like him. For the reasons I earlier mentioned, this court cannot enter on the question, probably unanswerable now in any event, whether it was the testator's character which was responsible for this unhappy relationship, or the appellant's, or, if it was due to interaction between the two, which of them should be regarded as being more at fault. There are some signs in the evidence of his father having been a difficult person within the family. It also seems clear from the evidence that the appellant has long been convinced that the fault lay with his father rather than himself, and it may be that the hope of obtaining some recognition for his view is the reason he has persisted in these proceedings. From the incidents at the end of 1953, several things emerge. One is the attempt by the father at that stage to treat the two sons more or less equally and to make some provision for them. This attempt on the father's part should be seen against the background that, on the evidence in this case, he was by no means a wealthy farmer and grazier. The family was making a living, but not much more, with comparatively meagre assets. Another thing that emerges is that in the years until the appellant went to work for the State Rail Authority, the younger son was the one who worked in partnership with the testator. Although that partnership was obviously a workable one, there are signs in the evidence that the younger son also was not always on cordial terms with his father. Further, I see no reason to doubt his statement that from the time of the dissolution of the tripartite partnership at the end of 1953 he did more and more of the work on the properties in the partnership between himself and his father. That is, to the younger son fell the tasks involved in working with the father in keeping the two properties going, as the father grew into old age, inevitably doing less and less work himself. The younger son spent his life, until 1981, working for his father and himself on the two properties. The evidence is also undisputed that he has significantly improved "Aylmerton" since 1981. The third feature that emerges is that whether the appellant's inability to make a living on "Kurrajong Hills" was due to the testator's deliberate undermining of his position (as the appellant believes) or due to under- capitalisation, or his own temperament, or some combination of two or more of these elements, the fact was, or at least would certainly have appeared to the testator to be, that once the appellant found employment, he showed he was quite capable of maintaining himself. So, in the years between 1971, that is, following the auction of all but 215 acres of the appellant's land, until the testator went into hospital in 1979 and then until he died in 1981, the position from the testator's point of view was that his elder son did not speak to him, lived in Binnaway, was self sufficient, was no doubt building up superannuation; the testator had in the past made some provision for him, now he appeared quite capable of providing for himself. 10 UNREPORTED JUDGMENTS On the other hand, when he made his last will in November 1980, the testator knew that "Aylmerton" by itself was not sufficient, properly managed, to provide a reasonable living for a family (all the evidence tends to this conclusion, although the appellant was reluctant to agree), that "Bugle Point" was also insufficient in itself to constitute a living area, that his younger son had worked with him throughout his life to make (what to me seems to me to have been) a hard living and, since 1954, worked the two properties together, in order to make some sort of a go of things. The question raised by s3(1) of the Testators Family Maintenance Act was whether the appellant had been left "without adequate provision" for his "proper maintenance, education, or advancement in life". One factor in deciding whether the testator had made "adequate provision" for the appellant must be the extent of the assets available to the testator from which he could make that provision, and from which he could make "adequate provision" for any others entitled to claim upon him. What "proper" maintenance etc for the appellant would be would depend at least in part on the appellant's position at the time of the testator's death. In this case these questions are to be looked at in the light of the history of the appellant's relations with his father, and the facts as they were when the Master heard the case, within the doctrine of Coates (see at 8 above). The chief such facts were that he owned his own home, modest it is true, but apparently of a standard he was content with, had a job with no retiring age limit which he intended to keep indefinitely, some other minor assets, and had available a capital sum of $137,000 whenever he chose to take it. I do not think that, against the background of the lives of the testator, the appellant and his younger brother it can be said that the appellant was left without adequate provision for his proper maintenance etc. This opinion is reinforced by the information given to this court, very properly, by the appellant's counsel, that since Master McLaughlin's decision the appellant has taken his State Rail superannuation, in the sum of $177,000, and continues to work for that employer. In my opinion the Master was broadly right in his approach to the case, even if he did make the factual mistake I have referred to, and on the facts as I understand them, I would come to the same decision. In my opinion the appeal should be dismissed with costs. Meagher JA I agree with Priestley JA. Appeal dismissed with costs. Counsel for the appellant: RJ Perrignon Solicitors for the appellant: Donald C Beit and John Clarke, Coonabarabran (City Agents - GH Healey and Co) Counsel for the respondent: M Southwick Solicitors for the respondent: Murphy Partners, Dunedoo (City Agents - Minter Ellison Morris Fletcher)