Hills v Chalk[2008] QCA 159

SUPREME COURT OF QUEENSLAND 

1. KEANE JA:  Mr Hills, the respondent to this appeal, married Mrs Chalk ("the Testatrix") on 22 January 1995.  Mr Hills was 69 years old at the date of the marriage and the Testatrix was 64 years old.  Each of them had been married before and had adult children.  The Testatrix died on 26 February 2003.  Probate of the will was granted on 29 April 2003 to the appellants who are the children of the Testatrix.

2. On 6 September 2007 Mr Hills made an application under Pt IV of the Succession Act 1981 (Qld) ("the Act") for an order that adequate provision for his proper maintenance and support be made out of the estate of the Testatrix.  Under s 41(8) of the Act, no such application may be made unless the proceedings are instituted within nine months after the date of the death of the deceased; but the court has a power to direct otherwise.  Accordingly, Mr Hills also applied for an order that his application for provision be heard and determined notwithstanding that it was instituted outside the time limited for bringing the proceedings. 

3. On 26 October 2007 the learned primary judge made orders including an order that the application for provision out of the estate be heard and determined notwithstanding that it was brought more than three years and nine months out of time. Her Honour also made directions for the mediation of Mr Hills' claim against the estate of the Testatrix.

4. The appellants challenge these orders. They contend that her Honour erred in the exercise of her discretion under s 41(8) of the Act. They contend that her Honour erred in failing to appreciate that Mr Hills' application for provision should be allowed to proceed only if she was satisfied that it was probable that an order for further provision would ultimately be made. Further, it is said that her Honour failed to conclude that, on the evidence before her, it was improbable that Mr Hills would succeed in obtaining an order for further provision out of the estate of the Testatrix. The appellants also seek to set aside the decision of the learned primary judge on the ground that her Honour's conduct of the proceedings below was apt to create a reasonable apprehension of bias on her Honour's part. It is necessary to address this issue immediately.

Apprehended bias

5. In the judgments of the High Court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd,^[1] it is suggested that a party who seeks to contend on appeal that the decision of the primary court is affected by bias, actual or apprehended, should not be allowed to pursue such a contention at the same time as it seeks orders vindicating its substantive rights.

6. Gummow ACJ said that the issue of bias must be dealt with first and separately from the other issues in the appeal. His Honour said:

"If the bias submissions were to succeed, the remedy would be a retrial. If the [substantive] submissions were to succeed, the [appellate court] would itself provide the orders which should have been made and there would be no occasion to order a retrial."^[2]

7. Kirby and Crennan JJ said that, if bias is established, it "strike[s] at the validity and acceptability of the trial and its outcome."^[3]  Their Honours said that a party who seeks to pursue a submission of bias on the part of the primary judge, whilst at the same time submitting that the case should be finally resolved in its favour, should be put to an election "on the basis that if the allegation of … bias is made out, a retrial will be ordered irrespective of possible findings on other issues."

8. The present appeal is, of course, not an appeal from a judgment given after a trial; but both parties accepted that these statements of principle apply to an appeal from an interlocutory hearing. Further, both parties urged the Court to hear the arguments agitated by the parties on all issues at the same time on the basis that, if the Court concluded that the ground of apprehended bias was made out, the issue of the extension of time should be resolved de novo by this Court.  It was evidently preferable to the parties that all issues in the appeal be resolved by one hearing, and it was, therefore, common ground that this Court should decide the substantive issues rather than remit them to the Trial Division if the argument as to apprehended bias was upheld. 

9. Having considered the arguments put by the parties on the issue of apprehended bias, I have concluded that a fair-minded person would not entertain a reasonable suspicion that the learned primary judge might not have brought an impartial and unprejudicial mind to the resolution of Mr Hills' application.^[4]

10. The first ground of the appellants' complaints of apprehended bias on the part of the learned primary judge was put in the appellants' written submissions in the following way:

"At the outset of the proceedings – before hearing any oral submissions, reading any of the evidence, or hearing the cross-examination of the Respondent – the primary judge expressed a clear and unqualified view as to the appropriate disposition of the proceedings."

11. In relation to this contention, the appellants point to the following exchange:

"HER HONOUR: … Well, what a terribly unhappy case. These cases, of course, are always affected by the fact that it's a family. You often see a reaction by children to their parents remarrying. It does seem to be one of those fault lines in families that one sees again and again. But why shouldn’t he be able to litigate this claim, Mr Morris?

MR MORRIS: Well-----

HER HONOUR: He may not be successful but he might be. There seems some prospect that he will be and we’ve certainly been left in a situation where he is living in a house that is impractical for him to stay in. Clearly the testator meant to make provision for him.

MR MORRIS: Yes.

HER HONOUR: A family maintenance claim is a way of adjusting that provision so that it is more suitable. It certainly doesn't appear as if the estate is so small that it's not possible to be done.

MR MORRIS: Your Honour-----

HER HONOUR: I can't - I can understand the reasons why he has delayed. One of the reasons is he didn't know of his legal rights. That's explained. The other is it's the fact that his circumstances have changed with his ongoing age and disability to make the present circumstances no longer suitable. I can't think of a better circumstance in which we should just make directions for the matter to proceed.

MR MORRIS: Well, if your Honour has already formed that view there's no point in responding to your Honour's questions.

HER HONOUR: Well, I ask those questions to seek a response but I have read your very detailed submissions.

MR MORRIS: Well, if I might then respond to your Honour's questions. Your Honour asked about the situation whether the house is suitable and your Honour said that in the context of your Honour's earlier observations about fault lines in family. The fact is, your Honour, that my clients recognised the claim made by Mr Hills without conceding it and, therefore, as your Honour would have seen, within three days after receiving this application, with no prior warning, no demand, no solicitors' correspondence said, 'All right, we'll rent you a unit if that's what you want'.

HER HONOUR: Sure, but, Mr Morris, one can immediately see the problems with that. All you have to give under the Residential Tenancies Act is 14 days' notice to someone and they have to move out of a rented unit. He is in an entirely different situation in the Hipwood Road house. What this calls out for is a mediation where all these things are worked through and a sensible solution is reached and that certainly can't be done if the matter is dismissed, and there's no reason it seems to me to summarily dismiss it so what should happen is-----

MR MORRIS: Your Honour has expressed that conclusion-----

HER HONOUR: -----directions are given which include a mediation - provision for mediation so the parties can sit down and sort it out.

MR MORRIS: Well, your Honour, to preserve my clients' rights elsewhere, let me say I appreciate your Honour has already expressed your view as the outcome. There were evidentiary objections and I wished to cross-examine Mr Hills for the purposes of your Honour determining finally today, as Mr Peterson seeks, the application for extension but your Honour has already expressed your view without my having that opportunity.

HER HONOUR: Mr Morris, if you wish to cross-examine someone, go right ahead.

MR MORRIS: Thank you, your Honour.

HER HONOUR: I am only saying - I am giving you my views, having read an outline of submissions by you which is, as I recall, 16 pages-----

MR MORRIS: 17, your Honour.

HER HONOUR: 17 pages in length and the detailed outline also, and the material attached to the detailed outline of Mr Peterson and the affidavit material before me. If you wish to cross-examine someone and if you wish to persuade me to change my mind, you're very welcome to.

MR MORRIS: Thank you, your Honour.

HER HONOUR: You might be successful."

12. The first difficulty with the appellants' contention in relation to this exchange is that a fair-minded observer of this process would understand her Honour had been provided with, and had read, the parties' written submissions on the issues before she made the observations of which the appellants complain.

13. Secondly, the fair-minded person postulated by the prevailing test of apprehended bias must be taken to have a sufficient knowledge of the procedural framework in which a given hearing is being conducted to be capable of forming a "fair-minded" and "reasonable" suspicion. Such a person can be taken to know that judges sitting in the daily applications list regularly seek to focus debate with a view to the expeditious resolution of each matter in order to accommodate all matters on the list. In such a context, judges can be forthright, and, at times, even blunt, without generating in a fair-minded observer a reasonable suspicion that the determination of the case will reflect partiality or prejudgment.^[5] 

14. Her Honour allowed cross-examination of Mr Hills to proceed. An observer with sufficient information about the process to come to a fair-minded view as to the course which then ensued would know that it is unusual for cross-examination of deponents to be permitted in the applications list: the pressure of business means that it is usually inconvenient to allow cross-examination; issues of credibility are rarely able to be resolved at an interlocutory stage. That the appellants were allowed to cross-examine Mr Hills was very much to their forensic advantage. The cross-examination was calculated to demonstrate that Mr Hills was acting unconscionably in bringing his claim, and that much of what he had said in his affidavit was untrue.

15. The appellants complain that, during the course of this cross-examination, the learned primary judge intervened on a number of occasions to "shield Mr Hills" or to elicit evidence helpful to him by leading questions. The appellants also argue that the learned primary judge was unduly ready to take Mr Hills' side on issues touched upon in cross-examination which bore upon whether an extension of time should be granted. By way of example of the appellants' complaint in this regard, the appellants refer to her Honour's willingness to accept that seemingly self-contradictory statements by Mr Hills as to the reasons for his delay in bringing proceedings or the purpose and extent of the provision sought from the estate of the Testatrix were likely to be explicable by reason of Mr Hills' age and infirmity.  But her Honour's interventions are understandable attempts to ensure that an elderly man, obviously suffering with difficulties of hearing and comprehension should be treated fairly.  Moreover, a fair-minded observer will understand that a particular line of cross-examination may not be of assistance to the court in resolving the particular issues which are required to be resolved. 

16. In such circumstances, it is legitimate for the judge to expedite the cross-examination to ensure that the course of argument and evidence is not allowed to lose focus of the particular issues required to be resolved on an interlocutory application.  It is hardly surprising that her Honour was reluctant to accept the appellants' invitation to resolve the issue as to whether an extension of time should be granted on the basis of an adverse view of Mr Hills' honesty as a witness or his good faith as a claimant.  Her Honour's interventions in the cross-examination of Mr Hills reflected that reluctance.

17. The appellants also complain that Mr Hills' original explanation for his delay in bringing an application for further provision from the estate of the Testatrix, viz, that he was unaware of his right to make such an application was plainly not truthful and that the explanation accepted by the learned primary judge, viz, that the deterioration in his health had occurred only recently, after the expiration of the time for bringing an application, had been suggested for the first time by the learned primary judge. But Mr Hills did give evidence to support this suggestion, and the learned primary judge's concern to ensure that Mr Hills' position be clarified is understandable having regard to the difficulties under which he was obviously struggling, in terms of recollecting past events and articulating his present position.

18. The focus of the appellants' attack on Mr Hills' veracity and bona fides seems to have obscured the difficulty which Mr Hills' loss of memory posed for his application for an extension of time. Mr Hills' loss of memory, and particularly his loss of memory of the circumstances in which he and the Testatrix came to execute a pre-nuptial agreement, meant that the prospects of a fair trial of his application for further provision were significantly diminished by his delay in making that application, even if that delay were otherwise satisfactorily explained.^[6]

19. I have concluded that the appellants' complaints of apprehended bias are not made out. It may also be said that the overwrought approach taken by the appellants before her Honour was distinctly apt to obscure the strength of the points which emerged more clearly on the hearing of the appeal. I now turn to a consideration of these points.

The factual background to Mr Hills' claim

20. Some reference to the uncontroversial facts of the case and to the reasons of the learned primary judge is necessary before proceeding to a discussion of the arguments which have led me to conclude that the appeal should be allowed and Mr Hills' application dismissed.

21. In the Testatrix' will made on 4 September 2001, she granted Mr Hills the right to reside in her house property at Hamilton. By a codicil dated 30 January 2003, she left him a legacy of $20,000 "in appreciation of his care of me during my illness". The balance of her estate was left to her children. The right to reside by the will was granted in the following terms:

"If my husband GARNET REGINALD HILLS survives me for 30 days, my Trustee shall hold my house property at 50 Hipwood Road, Hamilton, Brisbane (or any replacement residence occupied by me and GARNET REGINALD HILLS as our principal place of residence at my death) ('my house property') together with all my furniture and other articles and effects of domestic household and garden use not otherwise disposed of by this Will ('my household chattels') on the following terms:

(1)while GARNET REGINALD HILLS remains my widower (and has not entered into any cohabitation with any other person) and wishes to occupy my house property as his principal place of residence he may do so as long as he wishes, and have the use of my household chattels, provided he pays the rates and taxes levied and all utilities, such as electricity, telephone and gas, on my house property, and keeps my house property and my household chattels in repair to the satisfaction of my Trustee. My husband must obtain the consent of my Trustee to allow any other person to live in or occupy my house property either on a temporary or permanent basis;

(2)until GARNET REGINALD HILLS has in the opinion of my Trustee ceased to live in my house property or to comply with the conditions of his right of occupation, my house property must not be sold without his consent;

(3)my Trustee is not empowered during the period that GARNET REGINALD HILLS occupies my house property to sell it and buy from the proceeds another house property or home unit instead of, it being my intention that if my house property is not suitable for use by GARNET REGINALD HILLS or acceptable to him for any reason, his right of occupation ceases and my house property falls into residue;

(4) when, in the opinion of my Trustee, GARNET REGINALD HILLS ceases to live permanently in my house property or has failed to comply with conditions of his right of occupation ('Occupation Determination Date') my house property falls into and forms part of my residuary estate and must be dealt with accordingly;

(5) my Trustee must pay the premiums on any insurance policies effected on my house property and on my household chattels until GARNET REGINALD HILLS' right of occupation ceases.

(6)Major items of repair or replacement (for example, repainting, or installing new roof or a new hot water system) must be met from my Estate."

22. The dispositions effected by the Testatrix were in conformity with a pre-nuptial agreement made on 3 December 1994, whereby the Testatrix and Mr Hills made provision in relation to the extent to which they intended to intermingle their proprietary interests. Their agreement contemplated that they would fund their household expenses from a joint account, but each would keep separate the assets which he or she brought to the marriage. Importantly, they expressed their intention to make wills for the benefit of their respective children in relation to their separate assets. Their agreement provided as follows:

"Both Marie and Garnet propose to make Wills before their marriage. Although Marie has made provision for Garnet in her will on certain terms and conditions, is the intention of Marie and Garnet to provide for their families. It is therefore the intention of Marie that her children and grandchildren receive the benefit of her estate, both real and personal on her death.  It is the intention of Garnet that his children and grandchildren receive the benefit of his estate, both real and personal on his death. Marie and Garnet wish their intentions to be taken into account if either make an application under state testator's family maintenance legislation."

23. I should note here that, although Mr Hills cannot now recall signing this agreement, he accepts that he did sign it.

24. On 11 September 2001, the Testatrix executed a statutory declaration in the following terms:

"1.I make this Statutory Declaration to explain why I have, in my Will of 4 September 2001 and Codicil of 11 September 2001, left only a modest gift to my husband Garnet Hills.

2. Prior to our marriage in January 1995, Garnet and I discussed the difficulties of bringing 2 separate lives together at our age - particularly when we both had adult children and grandchildren from our previous marriages - and all the attendant encumbrances and possessions that life brings.

3. I was anxious that the assets I had accumulated, both financial and otherwise, be protected for direct inheritance by my children and grandchildren. I felt I also owed a duty, in this regard, to my previous husband who, upon his sudden death in 1979, left me a significant inheritance, which I feel a duty to in turn pass on to our children and grandchildren.

4. Prior to my marriage to Garnet [in] 1995, I had been alone for 15 years, and as a condition of my agreement to marry Garnet, I insisted that:

(1)Garnet and I share living costs; and

(2)each of us retain ownership and control of the assets he or she brought into the marriage.

5. To this end, Garnet and I had a pre-nuptial agreement drawn up to indicate our intentions. It was signed on 3 December 1994."

25. Mr Hills now suffers from ill health to the extent that he considers that it is not practicable for him to continue living in the former residence of the Testatrix. It is common ground that his health deteriorated after the death of the Testatrix, and, indeed, that the major deterioration in his health which has resulted in the unsuitability of the Hamilton house for his accommodation, occurred after the expiration of nine months from the death of the Testatrix. In cross-examination, Mr Hills said that he sought further provision to enable him to contribute to the construction of a granny flat accommodation at the house of his elder daughter so that she might provide him with necessary care and attention.  Later he suggested that he was not sure what would happen if his health deteriorated further:  there was the possibility that he would need funds to assist with accommodation in a nursing home.

26. The Hamilton house in which Mr Hills presently resides in accordance with the right of occupation granted to him by the will of the Testatrix is the only undistributed asset of her estate. It is common ground that it is worth more than $1 million.

27. Mr Hills is the father of three adult children. He has previously given his two daughters substantial sums of money upon the sale of his own former matrimonial home. It may be that these sums were advanced as loans: Mr Hills is not clear about that; but it seems that he is not willing to ask for the repayment of these sums.

28. There was no evidence before the learned primary judge that Mr Hills' children are unable, for financial reasons, to establish the granny flat he desires, or even that there would be any particular difficulty in their doing so. In this regard, one needs to bear in mind that any improvement to the property of his daughter and son-in-law would ultimately enure, to a large extent at least, for their benefit. Further, there was no evidence that Mr Hills' children were unable or unwilling to assist him with obtaining accommodation in a nursing home.

The reasons of the learned primary judge

29. The learned primary judge accepted that Mr Hills' delay in applying for provision for his maintenance and support out of the estate of the Testatrix was explicable by reason of the deterioration in his health and his recent appreciation that his circumstances mean that he will no longer be able to live independently. Her Honour did not conclude that the delay which has occurred in the making of Mr Hills' application was such as to prejudice the prospects of a fair hearing of his application.  It may be said that this was hardly surprising given the way the matter was conducted before her Honour. 

30. As to Mr Hills' prospects of success in his application, the learned primary judge said:

"That brings me to the prospects of success in the action. Mr Morris on behalf of the executors criticised Mr Hills for his uncertainty at this stage as to precisely what he wants. Of course it appeared from his answers to the question that part of the reason for his uncertainty as to precisely what he wants is caused by the uncertainty of an 81 year old man in poor health of precisely what will happen to him over the ensuing years. He may remain well enough to live in supported accommodation, he may need higher levels of care but those factors are ones that are part of the human condition that we cannot predict precisely what we will need in our old age and I do not think he is in any different position from any other person. All that is clear is that his current accommodation is unsuitable.

     In my view, he has reasonable prospects of success on an application for further provision to be made from the estate and so I grant the application for this originating application to be heard and determined, notwithstanding that it has been instituted outside the time limited for the bringing of the applications…"

Discussion

The proper approach

31. The appellants' submission was that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time. There is support for that view. In Re Terlier, deceased,^[7] Townley J said:  "If it is improbable that the substantive application will succeed it seems idle to grant the extension."  This statement was approved by Lush J in Re Walker, deceased^[8] where his Honour went on to add that the improbability of success "may stem either from the condition of the estate … or from the facts relevant to the [claimant's] claim, or from both …". 

32. Other decisions, such as Ashhurst v Moss^[9] and Warren v McKnight,^[10] do not suggest that these statements are erroneous in point of principle; but they follow a somewhat more flexible approach.  That more flexible approach is appropriate where facts material to the ultimate merits of the substantive application are unclear or disputed.  In such cases, it will often not be possible to come to a clear view that ultimate success is improbable.  In such cases, a balancing of the competing considerations may be necessary.

33. In this case, even on the best view of the evidence for Mr Hills, it was distinctly improbable that his substantive application would ultimately succeed. The learned primary judge did not specifically address the question whether it was probable that Mr Hills would ultimately succeed in obtaining an order for further provision. Her Honour did express the view that Mr Hills "has reasonable prospects of success"; but that is not quite the same as rejecting the proposition that, ultimately, success is improbable. And, in reaching her conclusion, her Honour gave no weight to the pre-nuptial agreement or to the circumstance that Mr Hills has adult children in relation to whom there was no suggestion that they are not ready, willing and able to provide for his needs. In these respects, I consider that her Honour erred in point of principle.

34. In Bird v Bird,^[11] White J said:

"Time limits in statutes are for good reason. Malcolm CJ in Clayton v Aust (1993) 9 WAR 364 quoted with approval the approach of Megarry VC in Re Salmon (deceased) [1981] Ch 167 at 175:

'… the time limit is a substantive provision laid down in the Act itself, and it is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extent [sic] the time.'"

35. It is difficult to see that there is any good reason why a claim for provision out of an estate which is clearly unlikely to succeed should attract the grant of an extension of time where the delay has been, as it is here, very long indeed. Most litigation is economically wasteful and involves personal stress. Litigation over the estate of a deceased loved one is usually especially stressful, and the economic waste is a matter of special concern. There will usually be little mercy, and there will often be considerable harm, in granting an extension to enable the making of a claim which should have been made, if at all, years before. When that claim will probably fail, there is no "substantial case for" granting an extension of time. To grant an extension of time in such a case is likely to serve only to waste resources and to cause, or increase, personal bitterness on all sides of the litigation.

36. It appears that the learned primary judge may have proceeded on the view that the existence of reasonable prospects that a claim for further provision will ultimately succeed should be regarded as a sufficient foundation to allow the application to proceed, notwithstanding that it has been brought long out of time, on the basis that the claim may be recognised by the representatives of the estate of the deceased as having sufficient merit to warrant resolution by negotiation. It may be that, generally speaking, the policy of the law should be to encourage the resolution of disputes by negotiation and agreement; but it may be doubted whether that general policy extends to giving life to disputes which, if they were to be raised at all, should have been raised years before. It would be odd if it were the policy of the law to facilitate the raising of disputes in the hope that they might be resolved by negotiation. But, on any view of the policy of the law, that general policy cannot be allowed to subvert the clearly expressed intention of the legislature that, generally speaking, there should not be any dispute at all raised by way of a claim for provision from the estate of a deceased person after the expiration of nine months following the death of the deceased.

37. In my respectful opinion, at least in those cases where it is possible for a court to reach a clear view that a claim for further provision is unlikely to succeed, a court should not exercise the discretion conferred by s 41(8) of the Act to facilitate the pursuit of a stale claim on the basis that a negotiated settlement might ensue.

The improbability of success

38. Whether one can come to a clear view that it is improbable that Mr Hills' claim will succeed can be assessed only by keeping in mind the process by which his application for further provision will be resolved. In Singer v Berghouse,^[12] Mason CJ, Deane and McHugh JJ explained the process involved in the determination of an application for provision out of the estate under the legislative provisions of which the Act is one example.  Their Honours said:

"The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd ([1938] AC at 476). The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

     The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder ((1951) 82 CLR 645), where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."^[13]

39. Under s 41(1) of the Act, the power of the court to make an order for provision out of the estate of a deceased person arises only where "adequate provision is not made from the estate for the proper maintenance and support of the deceased person's spouse, child or dependant." The court's power is couched in terms which require an evaluative assessment whether "adequate provision" has not been made for the "proper maintenance and support" of an eligible person. The court's power is not to make such provision as may be reasonably necessary to meet the needs of an eligible person from time to time.

40. Judicial statements of high and longstanding authority explain that the evaluative assessment whether "adequate provision" has not been made for the "proper maintenance and support" of an eligible person must be made from the perspective of the deceased person on the assumption that the deceased was alert to the considerations relevant to the making of "adequate" provision for the "proper maintenance and support" of the claimant. In Bosch v Perpetual Trustee Co,^[14] Lord Romer, delivering the advice of the Judicial Committee of the Privy Council said that "in every case the Court must place itself in the position of the testator, and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father."^[15]  There have been expressions of doubt as to the validity of supporting the postulate of the wise and just testator or testatrix by referring, as Lord Romer did, to the "moral duty" of the testator or testatrix.^[16]  In Singer v Berghouse, Mason CJ, Deane and McHugh regarded the introduction of notions of "moral duty" or "moral obligation" as a gloss upon the language of the Act.^[17]  Neither these observations in Singer v Berghouse nor the discussion of the point in Vigolo v Bostin^[18] cast doubt on the continuing validity of approaching the determination of whether "adequate provision" has been made for the "proper maintenance and support" of an eligible claimant by reference to the postulate of a wise and just testator or testatrix.

41. In the ultimate determination of Mr Hills' claim in this case, there would be, in accordance with the process described in Singer v Berghouse, an assessment of what a wise and just wife would have regarded as "adequate for … the proper level of [Mr Hills'] maintenance and support" having regard, amongst other things, to the totality of the relationship between Mr Hills and the Testatrix and the relationship between the Testatrix and her children.  This totality included the circumstance that the Testatrix' wealth was not the product of her relationship with Mr Hills, but of her life's work prior to that relationship, just as Mr Hills' own wealth was not the product of his relationship with her.  Each of them had adult children with claims on their respective bounty which each of them wish to honour.  Further, there was no reason to suppose that Mr Hills' children are unwilling or unable to give him the support he requires.  Finally, each of them had agreed in the pre-nuptial agreement that each would not seek to intercept the bounty intended for the other's children.

42. It can be said on Mr Hills' behalf that the Testatrix clearly intended by her will to provide him with a "roof over his head", possibly (though not necessarily) for the rest of his life; but it does not follow that she should notionally be regarded as having accepted that the cost of alternative accommodation and support should be defrayed from the proceeds of sale of the former matrimonial home should it cease to be a suitable residence for Mr Hills. As Lush J said in Re Walker, Deceased,^[19] the answer to the question whether it is improbable that the claim will succeed may depend, not only by reason of the "condition of the estate", but upon the facts relating to the circumstances of the claim.  This is such a case.

43. It is, I think, distinctly improbable that the application of the settled approach to the determination of whether "adequate" provision had been made for Mr Hills' "proper maintenance and support" would result in an order for the provision in Mr Hills' favour of the cost of the construction of a granny flat at his daughter's residence or an order for the payment of the amount necessary to defray all or part of his accommodation in a nursing home. The Testatrix had good reasons for regarding the disposition she made for Mr Hills as adequate for Mr Hills' proper maintenance. The Testatrix and Mr Hills had married late in life; they had grown up families each of which had their legitimate claims on their surviving parent's bounty. Each of them was also entitled to expect support and assistance from his or her own children. In the case of the Testatrix, her bounty was largely the product of her life with her deceased first husband and her own efforts after his death. Mr Hills' assets had also been accumulated during his first marriage. And, of course, there was the pre-nuptial agreement.

44. In my respectful opinion, the learned primary judge erred in failing to appreciate that the pre-nuptial agreement made by the parties, though not of itself directly decisive against Mr Hills' claim, is of significance to the assessment to be made by the court of Mr Hills' application for further provision from the estate of the Testatrix. The mutually agreed intentions and expectations of the Testatrix and Mr Hills expressed in the pre-nuptial agreement in relation to their adult children, and their acknowledgment that each should not seek to defeat the intentions of the other in that regard, was a consideration which should be regarded by the court as illuminating the totality of their relationship, and as suggesting that the provision made for Mr Hills by the Testatrix was adequate for his proper maintenance and support within the meaning of the Act. 

45. In Barns v Barns,^[20] the High Court recently affirmed that parties cannot contract out of the rights conferred by the Act.  On Mr Hills' behalf, it was argued that there are suggestions in the judgments in this case that an agreement by the parties as to their testamentary expectations is irrelevant to the exercise of the discretion to order further provision under the Act.  Even the most cursory reading of the judgments in Barns v Barns shows that this argument is without substance.  There is no suggestion in the authorities that an agreement reflecting the mutual intentions and expectations of the parties, as expressed in the pre-nuptial agreement in this case, should not have a bearing on the evaluation which must be made as to whether the provision made for an applicant in the position of Mr Hills falls short of the adequate provision for his proper maintenance and support.  The view that such an agreement is relevant to that evaluation is supported by Callinan and Heydon JJ in Vigolo v Bostin.^[21]

46. In this case, the voluntary statement of the parties of their mutual intentions and expectations in a form intended to be binding affords a reliable conspectus of the totality of the relationship of the parties and of their respective relationships with others who have a claim on their bounty. In my opinion, the court should have regard to such a voluntary statement by the parties of their intentions and expectations, unless there is good reason for the court to conclude that these intentions and expectations would not have shaped the thinking of the wise and just testator or testatrix postulated by the Act. There may be cases, for example, where the length of time and change in circumstances between the making of a pre-nuptial agreement and the death of one of the parties is such that the pre-nuptial agreement is no longer a true reflection of the parties' relationship. Or it may be that the evidence shows that the execution of the pre-nuptial agreement was procured by economic or other pressure. In this case, there is no such evidence, and the circumstances to which I have referred confirm that there are, in truth, good reasons why the pre-nuptial agreement should be regarded as an accurate reflection of the thinking of a wise and just wife in relation to the proper provision that should have been made from her estate for Mr Hills. 

47. As Barwick CJ said in White v Barron:^[22]  "The question whether the appellant was left without adequate maintenance must be answered at the date of death."  In White v Barron, Mason J said:

"The question whether the testator left the appellant widow 'without adequate provision' for her 'proper maintenance' was to be determined by the primary judge by reference to circumstances as they existed at the date of the testator's death. Once this question was answered in the affirmative, it was for the court to exercise its discretion to order adequate provision for proper maintenance for the appellant by reference to circumstances as they existed at the date of the order. See generally Coates v National Trustees Executors and Agency Co Ltd ((1956) 95 CLR 494). There Dixon CJ observed that in determining the initial question of jurisdiction the Court must look to what is 'necessary or appropriate prospectively from that time', that is, the date of death, including events which are contingent as well as those which are certain or likely. Advantage may be taken of hindsight so long as the subsequent occurrences fall within 'the range of reasonable foresight' ((1956) 95 CLR at 508)."^[23] 

48. It may be accepted that a deterioration in Mr Hills' health was an event which a wise and just wife would have foreseen at the date of her death; but there is no reason to suppose that the Testatrix did not foresee that deterioration bearing in mind the advanced age of the parties when she made her final will. The terms on which the right to reside in the Hamilton house property was granted, particularly sub-clause 5.1(3), show that the Testatrix did, indeed, advert to the possibility that the Hamilton house property might become unsuitable for Mr Hills' use. The respondent sought to rely upon evidence that, shortly before she died, the Testatrix had told one of the appellants to "look after Garnet". But that is, in my respectful opinion, no basis on which to conclude that the Testatrix thereby recognised the inadequacy of the provision she had made for Mr Hills. Moreover, there is no reason to conclude that the wise and just testatrix postulated by the authoritative judicial exegesis of the Act would have thought it proper to make a different provision for that eventuality from that which the Testatrix in fact made.

49. As at the death of the Testatrix, Mr Hills had provided his daughters with financial assistance; and there was no reason for the Testatrix to think that Mr Hills' children would not be ready, willing and able to provide him with necessary support and assistance in his old age, especially if he should become ill. Having regard to the totality of the relationship between the Testatrix and Mr Hills, including the pre-nuptial agreement, there was nothing unwise or unjust in the Testatrix' view that Mr Hills' care in the event of illness in his old age, should not be a charge on the benefits her children would derive from her estate, but upon his own adult children, bearing in mind the absence of any reason for her to think that Mr Hills' children might not be ready, willing and able to care for him. 

50. In these circumstances, it is distinctly unlikely that a court would ultimately decide that it was not open to the Testatrix, acting wisely and justly as wife and mother, to conclude that any necessary provision for Mr Hills' support and assistance should be met, not by a subvention from her estate, which would necessarily be at the expense of her children, but by Mr Hills' children who could be expected to provide that support and assistance.

51. It is not irrelevant to note here, as well, that it is well-settled that the Act is not intended to facilitate improvements in the lot of the dependants of elderly persons who seek further provision. In White v Barron, Mason J said:

"Circumstances are infinite in their variety and orders must be moulded to the circumstances of the particular case in order to ensure that the provision which is made is adequate for the proper maintenance of the widow, where that is possible. A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy."^[24]

52. In the present case, any provision of funds out of the estate of the Testatrix to enable the construction of a granny flat at the residence of Mr Hills' daughter will enure, substantially at least, to the benefit of his daughter and her husband.

Conclusion and orders

53. In my respectful opinion, it is distinctly improbable that a court would conclude that the Testatrix had failed to make such provision for Mr Hills as would have been made by a wise and just wife in the position of the Testatrix. As a result, there was no sufficient reason to allow Mr Hills' substantive application to proceed so long out of time.

54. The appeal should be allowed. The orders made below should be set aside. Mr Hills' application for provision out of the estate of the Testatrix should be dismissed with costs, both of the appeal, and of the application.

55. MUIR JA:  Introduction

The appellants, the executors of the estate of Marie Chalk, deceased, appeal against an order of a judge of the Supreme Court made on 26 October 2007, granting the respondent leave to proceed with an application for further provision from the Testatrix’s estate notwithstanding that proceedings were not instituted within nine months after her death. 

Relevant facts

56. Before going to the grounds of appeal it is useful to set out the more relevant evidence before the primary judge. The Testatrix died on 26 February 2003 leaving a will dated 4 September 2001. Under the Will she appointed her children, a son and two daughters, executors and trustees. The respondent was granted the right to reside in the Testatrix’s house, the former matrimonial home in Hamilton, for as long as he remained a widower and did not cohabit with any other person. The right was subject to the respondent’s paying the rates, taxes and outgoings in respect of the property and the obligation that it and the Testatrix’s household chattels be kept in repair to the satisfaction of the trustees. Clause 5.1(3) of the will provided:

“. . . it being my intention that if my house property is not suitable for use by [the respondent] or acceptable to him for any reason, his right of occupation ceases and my house property falls into residue.”

57. The trustees were obliged to pay the premiums on any insurance policies in respect of the house and household chattels and were also required to meet “major items of repair or replacement”.

58. The Testatrix made some specific bequests in favour of the appellants who also took the residue of the estate. There were two codicils to the will. The first is of no relevance for present purposes. By the second codicil dated 30 January 2003 the Testatrix amended the will by adding the following clause:

“4.2  I give to my husband ... $20,000 in appreciation of his care of me during my illness.” 

59. The Testatrix’s first husband died in 1979 and, whilst a widow, the Testatrix brought up and cared for the appellants. The Hamilton house and almost all of the remainder of the Testatrix’s estate was ultimately derived from her first husband.

60. At the time of making the first codicil to her will, the Testatrix swore a statutory declaration, it may be inferred, with a view to explaining her actions in relation to the will and resisting against any claim on her estate by the respondent. The declaration stated:

“2. Prior to our marriage in January 1995, Garnet and I discussed the difficulties of bringing 2 separate lives together at our age - particularly when we both had adult children and grandchildren from our previous marriages - and all the attendant encumbrances and possessions that life brings.

3. I was anxious that the assets I had accumulated, both financial and otherwise, be protected for direct inheritance by my children and grandchildren. I felt I also owed a duty, in this regard, to my previous husband who, upon his sudden death in 1979, left me a significant inheritance, which I feel a duty to in turn pass on to our children and grandchildren.

4. Prior to my marriage to Garnet 1995, I had been alone for 15 years, and as a condition of my agreement to marry Garnet, I insisted that:

(1)  Garnet and I share living costs; and

(2) each of us retain ownership and control of the assets he or she brought into the marriage.

5. To this end, Garnet and 1 had a pre-nuptial agreement drawn up to indicate our intentions. It was signed on 3 December 1994.”

61. The pre-nuptial agreement executed by the Testatrix and the respondent on 3 December 1994 recited that:  the Testatrix was 64 years of age; the respondent was 68 and in good health; the respondent was a part-time school teacher and that the parties had been independently advised.

62. The agreement provided, in effect, that the parties would keep the property owned respectively by them before marriage and would keep their finances separate. The respondent would sell his home in Corinda and live in the Hamilton house. They would contribute equally to costs of maintaining the Hamilton house and other household expenditure.

Clause 5 provided:

“If the parties cease to maritally cohabit, neither party may make any claim on the sale of property of the other party and neither party will make any claim for future maintenance from the other party other than as specified in this agreement.”

63. Clause 13 provided:

“Both Marie and Garnet propose to make wills before their marriage. Although Marie has made provision for Garnet in her will on certain terms and conditions, it is the intention of Marie and Garnet to provide for their families.  It is therefore the intention of Marie that her children and grandchildren receive the benefit of her estate, both real and personal on her death.  It is the intention of Garnet that his children and grandchildren receive the benefit of his estate, both real and personal on his death.  Marie and Garnet wish their intentions to be taken into account if either make an application under state testator’s family maintenance legislation.”

64. The Testatrix and the respondent were married on 22 January 1995 by which time the respondent had turned 69. He was then working part-time as a supply teacher. He has three surviving children from his first marriage, the youngest of whom is aged 36. The respondent sold his dwelling house for $220,000 and after re-paying a secured loan, invested the balance of $170,000.

65. In 1990, aged 65, the respondent retired from teaching so that he could have access to some $130,000 of superannuation monies to assist with his first wife’s treatment for cancer. After his first wife’s death, the respondent resumed work as a teacher. He continued working as a supply teacher until 2000 when he was 74 years of age.

66. In an affidavit read on the hearing of the application the respondent swore as follows. After retirement from teaching, in order to remain at home with the Testatrix, who was then ill, he had to meet his share of living expenses from the money he had set aside for his retirement. Only $20,000 of those monies now remain, apart from $40,000 lent to one daughter and $30,000 lent to another. His income was derived as follows:

Age Pension $265 per week

Repayment of loan from one child$40 per week when the borrower had work as an Opera singer

Repayment of loan from the other child$50 per week

His outgoings, including rates of $960 a quarter, totalled $467 a fortnight. 

67. At present his income exceeds his outgoings.

68. In 2006 the respondent was diagnosed with Meniere’s disease, the symptoms of which are vertigo, hearing impairment and a tremor in the upper limbs. He has been advised that as the disease progresses, his balance will be further impaired. He is now reliant on a wheeled walking frame for mobility and it is unsafe for him to continue to reside unassisted in the Hamilton home. He has been advised that within two years he will not be able to shower or dress himself, even with the assistance of a walker.

The respondent’s evidence in cross-examination

69. In cross-examination the respondent said that he had given $90,000 to his two daughters and had gradually “whittled down” the monies he had invested to the point that there was nothing left. Reminded that in his affidavit he had referred to loans to his daughters, he said, in substance, that the monies were initially provided by way of loan but that “ultimately the intention” was that the monies would be gifted. He said that he hadn’t “worried about any sort of repayment or anything like that.”

70. Asked what he actually wanted to achieve by his application, he said that he wanted “the opportunity to live in security with my daughter … in a granny flat situation.” Some of the money he hoped to obtain from the estate was to be provided for the purposes of constructing such accommodation. He said he was not aware that he had sworn in his first affidavit that he wanted to purchase a small unit near his daughter’s house. The respondent explained this change in his evidence by stating that he had signed the affidavit in a hurry.

71. Questioned about the pre-nuptial agreement, the respondent said that it amazed him and that he had no recollection of signing it. He accepted that it bore his signature. He said that he had never seen the statutory declaration before but that he would have assumed that the Testatrix was anxious that “the assets which she had accumulated be protected for direct inheritance by her children and her grandchildren.”

72. Asked by counsel for the appellants how, having read the statutory declaration and the pre-nuptial agreement, he could “reconcile it with [his] conscience to pursue this claim?”, he responded that Dr Chalk^[25] told him just after the Testatrix died, that the last thing she said was, “Make sure you look after Garnet.”  He later said he was told by Dr Chalk that it was “one of the last things [the Testatrix] said to him.”

Evidence of discussions between the parties concerning a change of residence by the respondent and improvements to the residence.

73. An affidavit filed on behalf of the appellants revealed that some discussion took place in December 2004 and in 2005 concerning a proposal by the respondent that in consideration of the payment of monies by the appellants, the respondent would vacate the Hamilton home and move into a granny flat at the residence of his daughter and son-in-law. In 2006 the respondent wrote a letter to Dr Chalk in which he stated why a move into a granny flat would suit his circumstances. There was some further discussion about the matter between Dr Chalk and the respondent in June 2007. The respondent, towards the conclusion of these discussions which extended over approximately two years, proposed that he be paid $200,000. The proposal was rejected.

General principles relevant to applications for extension of time

74. Section 41(8) of the Succession Act 1981 (Qld) (“the Act”) relevantly provides:

“(8) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.”

75. Relevant to the exercise of the Court’s discretion under s 41(8) of the Act are:

(a)whether there is an adequate explanation for the delay;

(b)whether there would be any prejudice to the beneficiaries;

(c)whether there has been any unconscionable conduct by the applicant;

(d)the strength of the applicant’s case^[26]

76. The applicant’s prospects of success on the substantive hearing are relevant to the exercise of the discretion to extend time. The following questions have been posed: whether the applicant has “an arguable case on the merits;”^[27] “a case fit to go to trial;”^[28] a case which is “so weak that it should not be permitted to go to trial;”^[29] or “an arguable case for relief”^[30].  In other cases there has been a general assessment of the strength of the applicant’s case^[31]. 

77. Plainly, the existence or otherwise of an arguable case is a relevant consideration and it will often be unnecessary to give further consideration to the strengths or weaknesses of the applicant’s case. It may be doubted, however, that in considering all relevant circumstances the Court’s sole consideration, in so far as the strength of the applicant’s case is concerned, is confined to determining whether there is an arguable case. It is against the trend of principle to fetter a discretion such as that conferred by s 41(8) of the Act by reference to inflexible principles or guidelines. When the circumstances relevant to an application are considered as a whole, as they must be, it may be that the finding of a strong case would influence the exercise of discretion in the applicants’ favour more than would a finding that the case was marginal at best. In any such process there is a need to recognise the limitations of the material before the Court on the application for leave, which will be generally untested by cross-examination, in comparison with the more extensive material likely to be in evidence on the substantive hearing.

78. The time limit imposed by s 41(8) of the Act has the obvious purpose of ensuring that an application for further provision from an estate does not unduly interfere with the estate’s prompt administration. There is also the consideration that persons named as beneficiaries in wills, to adopt the language of McHugh J in relation to limitation periods in Brisbane South Regional Health Authority v Taylor^[32] “… should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against [the estate].”

79. His Honour’s subsequent observations concerning the nature of limitation periods are also of relevance^[33]:

“A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.  Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”  (footnotes deleted)

80. Some of McHugh JA’s observations are echoed in the following passage from the reasons of Megarry VC in Re Salmon (Deceased)^[34]:

“[T]he time limit is a substantive provision laid down in the Act itself, and it is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules.  The burden on the applicant is thus, I think, no triviality: the applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time.”

81. The above passage was referred to with approval in Clayton v Aust^[35], Bird v Bird^[36] and Girando v Girando^[37].

Apprehended Bias

82. The appellants’ first ground of appeal is that “the primary judge’s conduct of the proceedings … was such as to create a reasonable apprehension of bias. The appellants’ argument in this regard is as follows. At the outset of the proceedings, before hearing oral submissions, and before the cross-examination of the respondent, the primary judge expressed a clear and unqualified view as to the appropriate disposition of the proceedings. After stating that the decision in Gigliotti v Gigliotti^[38] was authority for the proposition that a pre-nuptial agreement doesn’t preclude the making of a family provision claim, her Honour said:

“That’s all I need to know.  Well, what a terribly unhappy case.  These cases, of course, are always affected by the fact that it’s a family.  You often see a reaction by children to their parents remarrying.  It does seem to be one of those fault lines in families that one sees again and again.  But why shouldn’t he be able to litigate this claim, Mr Morris?

…

He may not be successful but he might be.  There seems some prospect that he will be and we’ve certainly been left in a situation where he is living in a house that is impractical for him to stay in.  Clearly the Testator meant to make provision for him … a family maintenance claim is a way of adjusting that provision so that it is more suitable.

… I can understand the reasons why he has delayed.  One of the reasons is he didn’t know of his legal rights.  That’s explained.  The other is it’s the fact that his circumstances have changed with his ongoing age and disability to make the present circumstances no longer suitable.  I can’t think of a better circumstance in which we should just make directions for the matter to proceed.”

83. Counsel for the appellants, who had attempted, without success, to respond to the question posed by the primary judge then said:

“Well, if Your Honour has already formed that view there’s no point in responding to Your Honour’s questions.” 

84. The primary judge then said:

“Well, I ask those questions to seek a response but I have read your very detailed submissions.”

85. In so expressing herself, the primary judge articulated “what can only be regarded as concluded views regarding the contentious issue of the respondent’s delay in commencing proceedings, and the explanations advanced by the respondent for that delay.” The primary judge expressed herself as able “to understand the reasons why he has delayed.” She accepted the respondent’s assertion that he “didn’t know of his legal rights” and the respondent’s explanation in that regard and then advanced an explanation of her own as to the reason for delay.

86. The only reasonable inference open on the evidence, having regard to the respondent’s admission that he signed the pre-nuptial agreement which recorded his having received separate and independent legal advice, was that he had in fact received such advice, including advice regarding his right to make a claim for family provision. “The fact that his circumstances have changed” put forward by the primary judge as an explanation for the delay in making an application was not “a fact”:

(a)which appeared in the respondent’s affidavits;

(b)for which there was any evidence, in the sense that it related to the delay;

(c)for which there was any evidence that the respondent was actuated by such a change in his circumstances to consult solicitors or give instructions to bring the application.

87. The more obvious explanation for the delay was that the respondent had been attempting for “upwards of two years to achieve that outcome (a) the one he sought by the application” by negotiation.

88. An open-minded judge who had no preconceived views as to the appropriate disposition of the application that the respondent’s actual intentions, as revealed by cross-examination, were inconsistent with the intentions deposed to in both affidavits:

“(a)a desire to purchase a small single level unit near his daughter; and

(b) a claim in respect of future daily care needs and future nursing home accommodation.”

The admission in cross-examination further establishes “that the respondent’s motivation when commencing proceedings was to secure an outcome which he had been attempting to secure by negotiations for a period of some years.”

89. A reasonable and impartial observer could not have been surprised when the primary judge delivered ex tempore reasons for judgment which largely ignored the evidence that had emerged under cross-examination and which did not differ from the view expressed at the outset of the proceedings and which seemed to have been held tenaciously throughout the hearing.

90. In addition to those matters, counsel for the appellants referred to passages in the transcript which, it was submitted, revealed that the primary judge: asked the respondent leading questions capable of eliciting answers favourable to his case; went to the rescue of the respondent when there was a risk that something might emerge from cross-examination which could be injurious to his case and repeated comments plainly favourable to the respondent.

Consideration of the apprehended bias argument

91. It is obviously the case that the primary judge revealed before cross-examination and hearing oral argument, that she was favourably disposed to the respondent’s case. But by this time she had had the benefit of extensive written submissions, particularly those on behalf of the appellants. The principle to be applied is that expressed in the following passage from the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy^[39]:

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ...

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”^[40]

92. Taken on its own, the passage for the reasons quoted above, and other passages in the transcript to like effect, although containing a strong intimation of the judge’s views, do not substantiate the appellants’ allegations. The application was being heard in the applications jurisdiction. In that jurisdiction there is normally considerable pressure on the judge to deal with applications promptly and efficiently. The role of written submissions is to expedite that process. A preliminary statement of the judge’s views can further assist by focussing argument and acquainting counsel with matters which counsel may need to address if the judge’s preliminary views are to be changed. Failure on the part of the judge to reveal his or her thinking could operate to a party’s disadvantage.

93. In this regard, Kirby and Crennan JJ in their joint reasons in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd ^[41] said:

“[111] In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the 'second step' in Ebner v Official Trustee in Bankruptcy) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson:

'Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.'

[112] Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.” (footnotes deleted)

94. It may be seen from the above passage from the transcript that the hearing got off to a rather inauspicious start with senior counsel for the appellants making a veiled accusation of bias. That allegation was repeated shortly afterwards when, in response to the primary judge’s assertion that “what this situation calls out for is a mediation where all these things are worked through and a sensible solution is reached”, counsel for the appellants stated:

“Well, your Honour, to preserve my client’s rights elsewhere, let me say I appreciate your Honour has already expressed your view as to the outcome.  There were evidentiary objections and I wished to cross-examine Mr Hills for the purposes of your Honour determining finally today, as Mr Peterson seeks, the application for extension but your Honour has already expressed your view without my having that opportunity.”

The primary judge responded that if counsel wished to cross-examine he should “go right ahead” and added that she had read his 17 page outline, the material attached to the detailed outline of the respondent’s counsel as well as the affidavit material.  She said that if counsel wished to persuade her to change her mind he was “very welcome to”.

95. The primary judge then dealt with objections by counsel for the appellants to aspects of the respondent’s affidavit material and the cross-examination of the respondent took place. The cross-examination occupies some 30 pages of transcript. There are indications in it that the judge was concerned, not surprisingly, with the time being consumed by the cross-examination.

96. The respondent was an 81 year old man, hard of hearing, who suffered from the degenerative condition described earlier. The cross-examination at times was emotion charged and forceful. I do not intend to convey by these observations that the tenor of the cross-examination was inappropriate in any way. Nor do I offer any criticism of counsel in relation to his rather robust reaction to what he perceived to be a mindset on the primary judge’s part. But the tension resulting from the initial exchanges between the primary judge and senior counsel for the appellants, the interaction between the judge and counsel and the other matters referred to above, in my view, serve to explain to a substantial degree many of the matters of which counsel for the appellants complains. I do not consider that a fair-minded lay observer might have reasonably apprehended that the judge may not have brought an impartial mind to the subject determination.

The existence of an adequate explanation for delay – the evidence and findings

97. As the date of the Testatrix’s death was 26 February 2003, the application should have been brought on or before 26 November 2003. The application was filed in September 2007, some three years and eight months late.

98. The respondent explained his delay in an affidavit as having arisen from his being unaware of his right to make an application until 14 July 2007 when he met with his solicitors to discuss his present circumstances and rights under the will. He swore that as a teacher he had not had exposure to legal matters or “the need to engage a solicitor on a regular basis.”

99. The primary judge accepted that there was an adequate explanation for the delay. After referring to the respondent’s evidence, which has just been discussed, her Honour explained that the respondent’s deteriorating health made the Hamilton home “quite unsuitable” for the respondent, who was unsuited to living on his own in a big house on difficult terrain. Her Honour concluded, “… those factors together have explained why it is that it is now that he is making the application.”

Submissions on the existence of an adequate explanation for delay

100. Her Honour’s findings were challenged by counsel for the appellants, who submitted as follows. The ignorance of legal rights was not sufficient to explain the respondent’s delay or to justify the granting of an extension of time. The real issue was whether the respondent had acted reasonably and prudently to protect his own interests, including taking appropriate legal advice at the appropriate time. “The fact that his circumstances have changed” was not something relied on by the respondent. That consideration was not referred to in either of the respondent’s affidavits and was not supported by any evidence. The more obvious explanation was the uncontested evidence that the respondent, having failed in his attempt over a period of about two years to negotiate a payment to enable him to have a granny flat constructed, attempted to achieve his objective by means of the application.

101. In assessing the respondent’s evidence, the primary judge should have had regard to the contrast between what was deposed to in affidavits as the respondent’s objective and his evidence in that regard under cross-examination.

102. It is submitted on behalf of the respondent that the reasons for delay deposed to by the respondent, together with “the cross-examination of the respondent and her Honour’s observations of the respondent were sufficient on any reasonable view to enable her Honour to make the findings on the issue of delay.”

Consideration of the explanation for the delay

103. The primary judge formed a favourable view of the respondent’s credibility. In relation to the question of whether there had been “sufficient explanation for the delay in making the claim” the primary judge said:

“… I had the great advantage of seeing him and hearing from him and being able to assess from that what his health, circumstances appear to be, how he is affected by his age and whether or not his explanations were adventitious or in fact true explanations of his state of mind.  He did appear, in giving his evidence, to be doing his best given his extreme hardness of hearing and the memory lapses consistent with his age and his health problems to give honest answers to the questions asked of him. His affidavit material shows in summary that he is not a lawyer, he has never had a personal solicitor, he did not know of any right to claim further maintenance and support … until quite recently.”

104. Although the respondent’s change in circumstances may not have been identified by the respondent in his affidavits as something which motivated him to seek legal advice, he did swear to meeting with his solicitors “to discuss [his] present circumstances.” Those circumstances, one would think, included his financial needs based on his deteriorating physical condition. Because of that condition, he had been seeking to change his accommodation for some time. Consequently, the primary judge’s inference that the respondent’s deteriorating condition was a factor which prompted his seeking legal advice was open on the evidence even though it was not adverted to directly by the respondent.

105. However, the respondent’s assertion of being unaware of his right to make application under the Act should be approached with caution. The respondent’s cross-examination revealed him to be an unreliable witness. The discrepancy between the need for a ground level unit sworn to in the affidavits and the desire to move into a granny flat asserted in cross-examination is difficult to explain on the basis that the affidavits were sworn in a hurry. It is highly unlikely that the solicitors for the respondent invented that part of his evidence. Nor is it particularly likely that the solicitors confused the respondent’s instructions.

106. There was also a substantial difference between the evidence as to loans to daughters in the affidavits and the initial evidence of gifts in cross-examination.

107. The respondent’s evidence of not recalling the pre-nuptial agreement and being amazed by its contents is improbable. The fact that the respondent may have had little direct exposure to lawyers and contractual matters, in my view, would make it more, rather than less likely, that he would recall signing a pre-nuptial agreement. Being presented with such an agreement shortly before marriage is something likely to engage the attention of all but the most casual of prospective grooms unless, perhaps, the content of the agreement had been discussed previously and he was comfortable with it. A possible explanation for the respondent’s failure to remember the agreement, if that is the fact, is the existence of a considerable memory deficit on his part. If that explanation is accepted, and there is support for it in responses by the respondent to questions asked in cross-examination, it provides a cogent reason for careful scrutiny of his evidence.

108. Examples of difficulty experienced by the respondent in remembering matters which a person with an average memory should not have difficulty recalling are as follows. Counsel for the respondent referred him to a paragraph in one of his affidavits in which he had sworn to having “had an independent appraisal of the property” and asked, “… was it a real estate agent or was it a valuer that gave you that information? Do you remember?” The response was, “That one that was taken last week. I’m trying to think who was responsible. He was – his name was Dunn. He came from the city and that’s all I know really about him.” The following exchange then took place:

“Do you know what his background was, what qualifications he had?--  Yes, he’s in this – this firm of – in the city here.  I didn’t take – I can’t remember the actual name of the firm.

Was it a firm of valuers or was it a firm of real estate agents?--  I thought it was valuers, but, look, I’m not really sure on that.”

In cross-examination the respondent was uncertain about the sale price of his house and the amount he had paid to discharge his mortgage.  He said of these matters, “… This is not very clear in my mind, but it’s going back some time.”  He also had difficulty in recalling how much money he invested after the sale of his house.

109. The respondent was unable to recall whether it was his son-in-law who suggested that he see his solicitors or whether the son-in-law had said anything about making a claim on the estate. Pressed about whether there was some reason for seeing the solicitors, he said, “I’m just trying to recall specifically the – I presume it was in connection with this --”. Asked by the primary judge not to presume but to only give evidence of what he remembered, he said that he was “vague on this issue”.

110. Whilst the primary judge, having witnessed the cross-examination was entitled to take a favourable view of the respondent’s honesty, the reliability of his recollection, was at least as important.

111. Because of the respondent’s memory difficulties there is no clear evidence of the respondent’s current financial position or of the way in which and extent to which he disposed of his assets to his children and otherwise after his marriage. Even if it is accepted that the respondent cannot now remember entering into the pre-nuptial agreement, it cannot be the case that he was never aware of it. It is also highly probable that he was aware, having regard to its contents, that the agreement manifested the desire of the Testatrix and himself that neither of them would make a claim for further provision out of the estate of the other.

112. The evidence does not reveal the history of the respondent’s memory loss and it is now impossible to tell whether there was a period after the Testatrix’s death during which the respondent was aware of having entered into the pre-nuptial agreement and of the possibility of making a claim on the estate. If there was such a period, its duration cannot now be determined. Consequently, a lack of recollection by the respondent of his rights to bring the application over an unknown period is not a matter which weighs significantly in his favour. Nor does the explanation that the respondent was moved to seek legal advice only when his physical condition had deteriorated to the extent that the Hamilton home was unsuited to his needs. Having regard to the respondent’s age at the date of the Testatrix’s death, it was readily foreseeable that the Hamilton home might become unsuitable in the not too distant future and that he might require assistance if he wished to continue to live outside an aged care institution. The evidence, in fact, indicates that he regarded the Hamilton home as unsuited to his needs for more than two years prior to bringing the application. He attempted during that period, to negotiate a payment from the appellants in exchange for the relinquishment of his right to reside in the Hamilton home. It was only when he could not secure a favourable outcome to the negotiations that he sought legal advice.

Did the appellants suffer any prejudice through the delay?

113. The primary judge’s finding in this regard is:

“In my view there is no prejudice to the respondents in this application being made now as opposed to being made within the nine months so that matter need not further concern me.”

114. Counsel for the appellants submits that this finding is inconsistent with the uncontradicted evidence of prejudice adduced by the appellants. Counsel for the respondent submits that the evidence of the “alleged” prejudice is illusory and unconvincing.

115. The prejudice pointed to by the appellants is as follows. In the nine months after the Testatrix’s death there were sufficient funds in the estate to have paid rent for alternative accommodation for the respondent or for the acquisition of a unit for the respondent to occupy. The estate, apart from the Hamilton home, was fully distributed prior to the making of the application. The appellants have dealt with their respective distributions as their own property and to pay rent or purchase a unit would now require the appellants to meet the liabilities out of their own funds.

116. After the Testatrix’s death the appellants continued “for some time” to pay half of the rates. They would not have done this if they were aware that the respondent intended to make his claim. Shortly after the Testatrix’s death Dr Chalk offered the respondent rent-free accommodation in a unit he owned. He also offered to purchase a unit in Hamilton or a townhouse in Hendra for the respondent to live in. None of these offers were accepted. Had they been accepted, the appellants would have been able to let out the Hamilton home at a rental sufficient to meet the outgoings on the alternative property. Alternatively, they had the option of selling the Hamilton property and generating sufficient income from the proceeds of sale to meet the cost of the alternative accommodation. The Hamilton property has deteriorated significantly through lack of maintenance and it will now cost a substantial sum to place it in a condition suitable for rental or sale.

117. The fact that Dr Chalk made offers to the respondent which weren’t accepted does not, except as discussed below, evidence any detriment to the appellants. On the face of things the distribution of the assets of the estate, the deterioration of the Hamilton property and the loss of flexibility in dealing with the assets of the estate constitute detriments which are real. Had an application for further provision been made in a timely way, the response to it could have been more flexible and more financially advantageous to the appellants. It is impossible to gauge the full extent to which the appellants may have been disadvantaged by the change in circumstances since the expiration of the time limit for the making of the application. The lack of direct evidence on the point suggests that the prejudice may not be particularly great.

118. There is further prejudice of a somewhat elusive, but nevertheless real, nature arising from bringing of an application under s 41(8) of the Act substantially out of time as it is highly likely that the Court will have regard to factual matters which would not have been before it had the application been brought and determined in a timely way. The question of whether the respondent has been left “without adequate provision” for his “proper maintenance” must be determined by reference to circumstances as they existed at the date of the Testatrix’s death. But “advantage may be taken of hindsight so long as the subsequent occurrences fall within the range of reasonable foresight.”^[42]  Once the initial jurisdictional question is decided the Court must “exercise its discretion to order adequate provision for proper maintenance … by reference to circumstances as they existed at the date of the order.”^[43]

119. The most obvious example of evidence which would not have been before the Court had a timely application been made but which will now be led is the evidence of the respondent’s Meniere’s disease diagnosis in 2006, his resultant deterioration and difficulties in caring for himself in the Hamilton home. It is that deteriorating physical condition which, in part, led the primary judge to conclude that there had been sufficient explanation for the respondent’s delay in bringing the application. Her Honour also took the respondent’s existing state of health into account in determining whether his conduct in bringing the application was unconscionable and in assessing the respondent’s prospects of success on the substantive application.

120. For the reasons discussed earlier, the respondent’s defective memory is also a possible cause of material prejudice to the appellants.

121. As the primary judge exercised her discretion on the basis that the appellants had suffered no prejudice, the exercise of the discretion miscarried and must be exercised afresh by this Court.^[44]

The appellants’ argument on the merits of the substantive application

122. Counsel for the appellants argues that the primary judge’s finding that the respondent’s claim has some real prospects of success is unsustainable.

123. Her Honour’s findings in this regard are as follows:

“Mr Morris on behalf of the executors criticised Mr Hills for his uncertainty at this stage as to precisely what he wants. Of course it appeared from his answers to the question that part of the reason for his uncertainty as to precisely what he wants is caused by the uncertainty of an 81 year old man in poor health of precisely what will happen to him over the ensuing years. He may remain well enough to live in supported accommodation, he may need higher levels of care but those factors are ones that are part of the human condition. That we cannot predict precisely what we will need in our old age and I do not think he is in any different position from any other person. All that is clear is that his current accommodation is unsuitable. In my view, he has reasonable prospects of success on an application for further provision to be made from the estate …”

124. The primary judge’s finding gives no weight to: the pre-nuptial agreement; the statutory declaration of the Testatrix explaining her testamentary intentions; the letter written by the Testatrix further explaining those intentions; the unchallenged parol evidence of the Testatrix’s testamentary intentions; the uncontradicted evidence that almost all of the Testatrix’s estate was ultimately derived from her first husband, the evidence that the Testatrix felt herself duty bound to ensure that the bulk of her estate went to the children of her first marriage and the evidence that the Testatrix would not have married the respondent unless he agreed “in accordance with the terms of the ‘pre-nuptial agreement’ that her estate would be preserved for the benefit of her own children and grandchildren.”

125. The primary judge failed to address whether the provisions of the will and codicils were inconsistent with the expectations of a “wise and just” wife and mother, inconsistent with the Testatrix’s moral obligations to the respondent or, such as to amount to an abuse of the Testatrix’s right to dispose of her property as she thought fit. The primary judge thus failed to apply the test enunciated in Bosch^[45].  Nor did the primary judge give weight to the fact that the respondent is an elderly man with limited life expectancy or his capacity to provide for himself through his own financial resources, including the debts owed to him by his children.  Even on the material placed before the Court by the respondent, he has financial resources adequate to satisfy the “needs” asserted in his affidavit and with the benefit of the appellants’ open offer, would have had “financial resources far more than adequate to satisfy” such needs.

Consideration of the strength of the respondent’s case

126. The “uncontradicted evidence” that the deceased would not have married the respondent unless he agreed, in accordance with the terms of the pre-nuptial agreement, that her estate would be preserved for the benefit of her own children and grandchildren which the appellants assert, is derived from the Testatrix’s statutory declaration. Hughes v National Trustees Executors and Agency Company of Australasia Limited ^[46] is authority for the proposition that such evidence is admissible only to “provide some evidence of the reason why the Testatrix has disposed of her estate in a particular way, and … is not admissible to prove what the Testatrix said or believed was true.”  Senior counsel for the appellants submitted that the evidence was admissible as a statement of a deceased person under s 92 of the Evidence Act 1977 (Qld).  Section 92 Evidence Act 1977 (Qld) makes admissible a statement contained in a document tending to establish a fact “direct oral evidence of [which] would be admissible”.  It may thus be doubted that  s 92 Evidence Act 1977 (Qld) gives the statutory declaration any greater evidentiary value.  The point however, is largely academic.  Undoubtedly, the respondent was aware from discussion with the Testatrix, from being requested to enter into a     pre-nuptial agreement and from the agreement’s contents that the Testatrix strongly desired to reserve her estate for the benefit of her children.  By signing the agreement, the respondent represented that the Testatrix’s wishes in that regard would be honoured.

127. The deceased’s reasons for acting as she did cannot, of course, protect the Testatrix’s estate from the application of s 41 of the Act. The same observation applies to the pre-nuptial agreement.^[47]

128. Section 41(1) of the Act relevantly provides:

“41 Estate of deceased person liable for maintenance

(1)If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.”

129. The test in Bosch v Perpetual Trustee Co Ltd^[48] on which the appellants rely is contained in the following passage from the reasons of the Judicial Committee which were delivered by Lord Romer, who referring to In re Allardice, Allardice v Allardice^[49] said:

“In the same case Edwards J expressed himself as follows:  ‘It is the duty of the Court, so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving, husband or father owes towards his wife or towards his children, as the case may be. If the Court finds that the testator has been plainly guilty of a breach of such moral duty, then it is the duty of the Court to make such an order as appears to be sufficient, but no more than sufficient, to repair it.

Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father. As was truly said by Salmond J in In re Allen (Deceased), Allen v. Manchester: The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.’"  (emphasis added)

130. In Singer v Berghouse^[50] Mason CJ, Deane and McHugh JJ expressed doubt as to the utility of the statement by Salmond J in In re Allen (Deceased); Allen v Manchester^[51] approved and emphasised in the preceding paragraph.  Their Honours observed:

“Indeed, references to ‘moral duty’ or ‘moral obligation’ may well be understood as amounting to a gloss on the statutory language.”^[52]

131. They went on to hold that the determination of an application for further provision required a two-stage process. The first stage requires an objective determination of whether the applicant had been left without adequate provision for proper maintenance, education and advancement in life. The second stage, which arises only if the first is determined in favour of the applicant, requires the determination of “what provision ought to be made out of the deceased’s estate for the applicant.”^[53]  The second stage involves similar considerations to the first.  They are^[54]:

“… an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

132. The joint judgment, whilst expressly approving the explanation of the terms “adequate” and “proper” and the “interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ ” in Bosch,^[55] otherwise cast doubt on Bosch’s authority.  It was acknowledged however that the first stage “involves the making of value judgments.”^[56]

133. In Singer Toohey J expressly approved of another passage from the reasons of Salmond J in In re Allen, which was approved of in Bosch^[57].  The passage included the statement that “the Act is … designed to enforce the moral obligation of a testator …”^[58]  Gaudron J, the other member of the Court, found it unnecessary to address the question of the continued authority of the passage from the reasons of Salmond J questioned in the joint reasons.

134. In Vigolo v Bostin^[59], Gleeson CJ, in his reasons and Callinan and Heydon JJ in their joint reasons, rejected the view that the use of a test in terms of “moral duty” or “moral claims” tended to mislead and should thus be avoided.^[60]  Callinan and Heydon JJ were of the view that it would not always be appropriate to apply the two-stage approach articulated in Singer. 

135. In Vigolo Callinan and Heydon JJ, after identifying decisions in which the passage from the reasons of Salmond J in In re Allen emphasised in para [129] above, together with the preceding sentence, had been cited with approval in decisions of the High Court said^[61]:

“[121] For many years therefore several justices of this Court have found it convenient and generally useful to resort to the concepts of a moral duty and a moral claim in deciding both whether, and how much provision should be made to a claimant under the Act. In our respectful opinion they have not been wrong to do so. These are not concepts alien to, or in any way outside, the language of s 6 of the Act.

[122] We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.” 

136. The sentence from the reasons of Salmond J in In re Allen referred to above is:

“The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty.”^[62]

137. Their Honours’ reasons which warned, implicitly, of the need to focus on the language of the relevant statutory provision, contain no reference to Bosch.  Gleeson CJ noted that the criticised passage from the reasons of Salmond J had been adopted by the Privy Council in Bosch and that Bosch had been followed and applied “in this Court many times”.^[63]

138. The Chief Justice, after stating that he did not share the doubt expressed in the joint reasons in Singer v Berghouse that Salmond J’s statement “provided useful assistance in elucidating the statutory provisions” observed, “I add, however, that it is one thing to seek assistance in elucidating statutory provisions, and another to substitute judicial exposition of statutory purpose for the legislative text.”^[64]

139. It may be concluded therefore that the principles expounded in the subject passage from the reasons of Salmond J in In re Allen, whilst not acting as a substitute for the provisions of s 41(1), continue to provide authoritative guidance on the application of those provisions.

140. Counsel for the respondent argued that the pre-nuptial agreement was of little relevance to the determination of whether the jurisdictional question should be answered in the respondent’s favour. In support of his argument, counsel placed particular reliance on the following passage from the reasons of Kirby J in Barns v Barns^[65]:

“[127] In many recent decisions this Court has emphasised the primacy of the statutory text and the necessity to find legal rights and duties according to any applicable statutory prescription, rather than by reference to pre-existing rules of the common law or of equity. Those authorities teach the lesson that the starting point for resolving the respective rights and obligations of the parties in the present appeals is an ascertainment of the true operation of the Act. Private contractual arrangements, otherwise valid and binding between the parties and their successors, must, once valid legislation impinges on the conduct of parties, be understood and applied subject to the operation of that legislation, construed so as to achieve its purposes as expressed in the chosen language.”  (footnote deleted)

141. The passage does not support counsel’s contention. In Barns the Testator, his wife and son entered into an agreement under which each of the Testator and his wife agreed that under his or her will, he or she would leave his or her estate to the other, if still surviving, otherwise to the son.  The Testator died leaving a will which implemented the agreement by naming his wife as the Testator’s sole beneficiary.  The question for determination was whether the effect of the agreement was that the Testator’s property did not form part of his estate for the purposes of s 7(1) of the Inheritance (Family Provision) Act 1972 (SA).  Having regard to this background it is apparent that Kirby J’s observations are in respect of the proper approach to the construction and application of s 7(1).  They do not purport to state a principle that an agreement or understanding between the Testator and the applicant as to the testamentary disposition of the Testator’s property are irrelevant to the question of whether the Testator has made adequate provision for the proper maintenance of the applicant.  The relevance of such an agreement was acknowledged in the joint reasons of Callinan and Heydon JJ in Vigolo v Bostin^[66].

142. The pre-nuptial agreement is plainly part of the relevant circumstances the primary judge was required to consider in assessing the respondent’s prospect of success on the jurisdictional question. It was of particular relevance to “the totality of the relationship” between the Testatrix and the respondent.”^[67]

143. It is as well to remember also that “in exercising the power given by a section such as [s 41(1)] the court is not entitled to re-write the will of a testator in accordance with its own ideas of fairness or justice.”^[68]  In Pontifical Society for the Propagation of the Faith v Scales,^[69] Dixon CJ, after stating that all authorities agree that it was never meant that the Court should re-write the will of a Testator observed:

“Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.”

144. A related and equally well established principle is that the Court’s power to interfere with a testamentary disposition does not arise unless the Court decides that “there has been a breach by the testator of . . . moral duty in not making [proper provision] for the applicant in his will.”^[70]

145. To adapt the language of Salmond J in In re Allen (Deceased), there is no justification for making further provision for the respondent beneficiary unless the Testatrix failed to make for the respondent a “testamentary provision … which a just and wise [wife] would have thought it [her] moral duty to make in the interests of [her widower] … had [she] been fully aware of all the relevant circumstances.”^[71]

146. In determining the respondent’s prospects of success the primary judge gave consideration only to the actual and prospective needs of the respondent. In so doing her Honour failed to give appropriate consideration to whether adequate provision had been made for the respondent’s “proper maintenance and support”. Such consideration required “consideration of all the relevant circumstances” including the Testatrix’s wishes, the pre-nuptial agreement and other claims on the estate. The exercise of the primary judge’s discretion miscarried for that reason also.

147. The hypothetical Testatrix would have had regard to the following considerations as at the date of her death. The fact that the great bulk of her estate was derived from her first husband. The claims of the appellants, as her and her late husband’s children, on that estate. The respective ages of the respondent and herself at the time of marriage and their awareness that she and the respondent surely had that would, before many years had passed, they would face the disabilities and uncertainties associated with ageing. The willingness of herself and the respondent, nevertheless, to make a mutual commitment that their respective estates be left to their respective children. The pecuniary legacy of $20,000 to acknowledge the respondent’s support and assistance during her illness. The provision to the respondent of the Hamilton home for as long as he was able to or wished to reside in it. The relatively modest circumstances of the respondent, the eight years of marriage, the respondent’s assistance to her in her final illness and his advancing years.

148. Weighing the considerations just mentioned, one may well conclude that the hypothetical Testatrix may have considered it appropriate to make greater provision out of her estate for her husband. It is difficult, however, to conclude that the hypothetical Testatrix breached her moral duty by not making greater provision for the respondent than that made in the will and codicils. The hypothetical Testatrix, taking into account the legacy of $20,000, would have failed to ascertain a change in circumstances since the entering into of the pre-nuptial agreement which suggested that a different approach to the disposition of her estate was required.

149. If consideration is given to the matters referred to in the passage from the joint judgment in Singer quoted in para [65] above, the same conclusion follows.

150. Asked in cross-examination if his recent perusal of the pre-nuptial agreement changed his attitude to proceeding with his claim the respondent replied that he “felt that conditions had changed considerably.” No explanation of that answer was sought in cross-examination or re-examination. The respondent may have had in mind a statement by the Testatrix just before her death to Dr Chalk which, according to the respondent, was “Make sure you look after Garnet.” The statement, if made, is of a general nature more consistent with a charge by the Testatrix to her son to continue to socialise with and render assistance to the respondent from time to time than with any desire on her part to make further provision for the respondent from her estate. I do not accept counsel for the respondent’s submission that the words demonstrated a consciousness by the Testatrix of financial need on the part of the respondent.

151. Relevant also to the merits of the respondent’s claim is the lack of credible evidence as to the erosion of the respondent’s superannuation and the diminution of the fund of some $160,000 resulting from the sale of his house. The respondent’s affidavit evidence referred to loans of $40,000 to one daughter and $30,000 to another and to monies received by way of repayment. The respondent’s letter to Dr Chalk in 2006 referred only to the payment of interest on the loans. The payment of interest is more consistent with the respondent’s explanation in cross-examination to the effect that he “was not relying on getting back anything from [his] family …”

152. For these reasons I am of the view that the respondent’s prospects of success on a substantive hearing would be no better than modest.

Summary and Conclusion

153. A case of apprehended bias has not been made out.

154. Contrary to the findings of the primary judge the evidence demonstrates that the appellants would suffer distinct prejudice as a result of the very substantial delay by the respondent in bringing the application to extend time were the application to be granted.

155. The explanation for the respondent’s delay in bringing the application does not weigh significantly or at all in favour of the granting of the application. In particular, the evidence does not disclose whether there was a period after the Testatrix’s death in which the respondent was aware of his right to bring an application for further provision from the Testatrix’s estate.

156. Because of my conclusions in respect of other aspects of the appellants’ case, I have not found it necessary to deal with the appellants’ allegations of unconscionable conduct.

157. The respondent’s prospects of success are, at best, modest. In assessing the respondent’s prospects of success on a substantive hearing, the primary judge erred in considering the respondent’s needs to the exclusion of the other circumstances relevant to the determination of whether adequate provision had been made for the respondent’s proper maintenance and support.

158. The exercise of the primary judge’s discretion miscarried and it falls to this Court to exercise the discretion.

159. Having regard to the considerations discussed above and, in particular, the prejudice to the appellants, the respondent’s prospects of success, the extent of the delay and the explanation for it, I am not persuaded that the application should be granted.

160. I would order that the appeal be allowed with costs.

161. FRASER JA:  The respondent applied to the Supreme Court under s 41(8) of the Succession Act 1981 for an extension of time to enable him to apply for provision out of the estate of his deceased wife.  The appellants, the executors, opposed the application.  After a hearing in which the respondent was
     cross-examined the primary judge granted the application.

162. The appellants challenge that decision on two grounds. First, they contend that there is a reasonable apprehension that the primary judge was biased. Secondly, they contend that the primary judge made factual and legal errors that vitiated her Honour's decision.

Factual summary

163. When the respondent married the Testatrix in January 1995 he was 69 years of age and she was 64 years of age; each had been married before and there were children of those earlier marriages. The Testatrix was wealthier than the respondent. They executed a pre-nuptial agreement in December 1994, shortly before they married. It provided for the maintenance of the existing separation of their own property and incomes, other than for equal contributions to household expenses. Amongst other matters it referred to their intention to make wills before the marriage and provided:

"Although Marie has made provision for Garnet in her will on certain terms and conditions, it is the intention of Marie and Garnet to provide for their families.  It is therefore the intention of Marie that her children and grandchildren receive the benefit of her estate, both real and personal on her death. It is the intention of Garnet that his children and grandchildren receive the benefit of his estate, both real and personal on his death. Marie and Garnet wish their intentions to be taken into account if either make an application under state testator's family maintenance legislation."

164. Those terms of the pre-nuptial agreement were then reflected in the terms of the Testatrix’s will made on 4 September 2001. It provided that if the respondent survived her for 30 days her trustee should hold the house in which they had lived together during their marriage (with furniture etc) on terms that the respondent might continue to reside there as long as he remained her widower and wished to stay there.

165. The same clause went on to provide that the trustee appointed under the will was not empowered during the period that the respondent occupied the house to sell it or buy from the proceeds of its sale another house property or home unit, "it being my intention that if my house property is not suitable for use by [the respondent] or acceptable to him for any reason, his right of occupation ceases and my house property falls into residue".

166. This provision and the pre-nuptial agreement were explained by the Testatrix in a statutory declaration made shortly after execution of the will. She explained that before their marriage she was anxious to protect her assets for her children and grandchildren, partly because her former husband had left her a “significant inheritance, which I feel a duty to in turn pass on to our children and grandchildren.” She said that she insisted to the respondent “as a condition of my agreement to marry” that they share living costs and that each of them retain ownership and control of their own assets.

167. A codicil was executed by the Testatrix shortly before she died in which she added a bequest to the respondent of $20,000 by way of “appreciation of his care of me during my illness”.

168. The Testatrix died in February 2003, after eight years of marriage. Probate of the will was granted in late April 2003, to the appellants, the children of the Testatrix and the beneficiaries of the residuary estate.

169. The time limit for making application for provision out of the estate fixed by s 41(8) of the Succession Act 1981 (nine months after the death of the Testatrix) expired in November 2003 without any such application having been made.  The respondent made application for an extension of time in September 2007.  By then the estate had been fully distributed apart from the house in which the respondent continued to reside.  It is thought to be worth more than $1 million.

Apprehended bias

170. The principles that are relevant in this appeal to the question whether there is a reasonable apprehension of bias are set out in the joint judgment of Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd^[72]:

"The appeal involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ... The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the 'second step' in Ebner v Official Trustee in Bankruptcy) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson: 'Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.' Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias."

171. The appellants’ first argument in this respect is that the primary judge appeared to have prejudged the application in the respondent's favour when her Honour expressed a "clear and unqualified view" adverse to the appellants before hearing oral submissions, reading the evidence, or hearing cross-examination of the respondent. The following passage was submitted to justify that proposition:

"HER HONOUR: I can’t - I can understand the reasons why he has delayed. One of the reasons is he didn't know of his legal rights. That’s explained. The other is it’s the fact that his circumstances have changed with his ongoing age and disability to make the present circumstances no longer suitable. I can’t think of a better circumstance in which we should just make directions for the matter to proceed.

MR MORRIS: Well, if your Honour has already formed that view there's no point in responding to your Honour’s questions.

HER HONOUR: Well, I ask those questions to seek a response but I have read your very detailed submissions.

MR MORRIS: Well, if I might then respond to your Honour’s questions. Your Honour asked about the situation whether the house is suitable and your Honour said that in the context of your Honour's earlier observations about fault lines in family. The fact is, your Honour, that my clients recognised the claim made by Mr Hills without conceding it and, therefore, as your Honour would have seen, within three days after receiving this application, with no prior warning, no demand, no solicitors’ correspondence said, "All right, we’ll rent you a unit if that’s what you want".

HER HONOUR: Sure, but, Mr Morris, one can immediately see the problems with that.  All you have to give under the Residential Tenancies Act is 14 days' notice to someone and they have to move out of a rented unit.  He is in an entirely different situation in the Hipwood Road house.  What this calls out for is a mediation where all these things are worked through and a sensible solution is reached and that certainly can't be done if the matter is dismissed, and there's no reason it seems to me to summarily dismiss it so what should happen is -----

MR MORRIS: Your Honour has expressed that conclusion ------

HER HONOUR: ----- directions are given which include a mediation - provision for mediation so the parties can sit down and sort it out."

172. Reference should also be made to the immediately following passage, which sets out some relevant contextual matters:

"MR MORRIS: Well, your Honour, to preserve my clients’ rights elsewhere, let me say I appreciate your Honour has already expressed your view as the outcome. There were evidentiary objections and I wished to cross-examine Mr Hills for the purposes of your Honour determining finally today, as Mr Peterson seeks, the application for extension but your Honour has already expressed your view without my having that opportunity.

HER HONOUR: Mr Morris, if you wish to cross-examine someone, go right ahead.

MR MORRIS: Thank you, your Honour.

HER HONOUR: I am only saying - I am giving you my views, having read an outline of submissions by you which is, as I recall,
16 pages --------

MR MORRIS: 17, your Honour.

HER HONOUR: 17 pages in length and the detailed outline also, and the material attached to the detailed outline of Mr Peterson and the affidavit material before me. If you wish to cross-examine someone and if you wish to persuade me to change my mind, you’re very welcome to.

MR MORRIS: Thank you, your Honour.

HER HONOUR: You might be successful."

173. I do not accept the submission that the passage relied upon by the appellants establishes that the primary judge prejudged the application. A number of features of the passage and its context persuade me to that view. By the time her Honour expressed the views recorded in that passage, she had read counsels’ apparently comprehensive outlines of submissions. It is therefore to be expected that her Honour would have formed a provisional view about the matter. It is evident that the view her Honour in fact formed favoured the respondent, but that does not mean that her Honour did not remain open to persuasion by the appellants’ arguments.

174. That the primary judge maintained an open mind is consistent with the fact that her Honour commenced the dialogue with a question: "But why shouldn't he be able to litigate the claim, Mr Morris?" Similarly, her Honour's characterisation of her subsequent remarks was that they were made for the purpose of seeking a response.

175. Furthermore, when the right to cross-examine was requested it was immediately granted: that is by no means an inevitable response to an application for leave to cross-examine in an application of this kind in the applications jurisdiction. This is a further indication that her Honour had not closed her mind about the application.

176. Robustness is expected in the applications jurisdiction, where judicial intervention to keep matters moving is the norm rather than the exception. That may of course go too far, but whilst the primary judge’s remarks were expressed in quite strong terms I am not persuaded that they evidence prejudgment rather than the permissible expression of a tentative opinion based on the reading of the extensive written arguments for both sides.

177. The appellants' senior counsel next referred to many passages in the transcript of the cross-examination of the respondent which, it was submitted, supported the claim of apprehension of bias. Those passages must first be put into their context. The argument for the appellants below focussed strongly upon their ambitious claim that the respondent's application was demonstrably unconscionable: that this was so clear that the application should be summarily dismissed for that reason. This was reflected in the cross-examination of the respondent, which vigorously attacked his bona fides in seeking to apply for further provision.

178. The respondent appears to have had a poor memory of the relevant events, some difficulty in hearing and perhaps in understanding some questions, and some problems in getting to the point. Her Honour intervened to ask questions of the respondent on quite a few occasions, but largely in an endeavour to ensure that the respondent, an elderly man labouring under understandable difficulties in the witness box under a sustained cross-examination, had a reasonable opportunity of completing or explaining answers, or dealing with issues related to the cross-examiner’s questions, where her Honour thought this might be of assistance or speed up the process.  The primary judge’s interventions do not justify a reasonable apprehension of bias by an informed bystander in these circumstances, in my respectful opinion.

179. The submission was also made that a reasonable apprehension of bias is shown by the fact that her Honour adhered to the views expressed at the outset of the case despite clear admissions by the respondent in cross-examination. Whilst I consider that the primary judged erred in the manner I discuss later in these reasons, that is not demonstrative of prejudgment.

180. Taking all of the appellants' points together, in my opinion they fall short of establishing that the primary judge's conduct of the application gave rise to a reasonable apprehension of bias. I would reject that ground of appeal.

181. In the view I take it is unnecessary that I decide the question, which was debated at the hearing of the appeal, whether or not the only remedy available to a party who succeeds in establishing bias in an interlocutory appeal of this kind is remission to the Trial Division for a rehearing afresh, even where both parties invite the appeal court (as they did in this appeal) to rehear the application and decide it afresh.^[73]

Application under s 41(8) of the Succession Act 1981

182. Subsection 41(1) provides, so far as it is relevant in this appeal, that if any person dies testate and in terms of the will adequate provision is not made from the estate for the proper maintenance and support of the deceased person's spouse, the court may, in its discretion, on application by the spouse, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse.

183. The provision in issue in this appeal is s 41(8) which provides:

"(8)Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made."

184. The primary judge exercised that discretion to grant an extension of time to the respondent. Her Honour’s reasons for doing so were, in summary, that the respondent had provided an adequate explanation for his delay, extending time occasioned no prejudice to the appellants, and the respondent had reasonable prospects of succeeding in his substantive application.

185. The appellants challenge her Honour’s findings and contend that her Honour erred in exercising the discretion in the respondent’s favour. It is therefore necessary to consider each of the grounds for granting the extension found by her Honour.

Explanation for the delay

186. The primary judge found that there were two explanations for the delay. First, her Honour found that the respondent did not know of his right to claim further maintenance and support from the estate of the deceased until quite recently before the application. Secondly, her Honour found that the house in which he resided, pursuant to the provision made for him in the will, had been rendered quite unsuitable for him by his deteriorating health (whereas earlier it was only "not entirely suitable to him"). Her Honour found that those factors together explained "why it is that it is now that he is making the application."

187. It is convenient to deal immediately with the second of those findings. I would accept the submission made on behalf of the appellants that the evidence did not support the view that the respondent's progressively deteriorating health explained his delay in making the application.

188. That the respondent might find the house unsuitable after he commenced to occupy it was itself foreseen in the terms of the will. As I earlier mentioned, the will provided that the trustee appointed under the will was not empowered during the period that the respondent occupied the house to sell it or buy from the proceeds of its sale another house or home unit, "it being my intention that if my house property is not suitable for use by [the respondent] or acceptable to him for any reason, his right of occupation ceases and my house property falls into residue". The applicant's own evidence was that a copy of the relevant provisions of the will, including that clause, was provided to him. The whole of the will was also read out in his presence shortly after the death of the Testatrix. He did not depose to any difficulty in understanding the clear implication in that clause that if the house became unsuitable for him – as of course it might as he aged further - he would have to find alternative accommodation from his own resources.

189. The possibility that the house would become unsuitable for the respondent’s needs then eventuated well before the application was brought on 6 September 2007, although the progressive deterioration in the respondent’s health that produced this result seems to have commenced after the expiry of the nine month limitation period for applying for further provision. The respondent was diagnosed with Meniere's disease in 2006. That disease includes as symptoms hearing loss, dizziness and tinnitus. The respondent deposed that the house had become inappropriate for his needs some 12‑18 months before he swore his supporting affidavit – that is, the house had become unsuitable for him by as early as April 2006.

190. Furthermore, the respondent did not challenge the appellants’ affidavit evidence that for some two years before the application was filed the respondent had been negotiating with the appellants with a view to obtaining provision from the estate to contribute to his daughter and son-in-law to assist them in constructing a “granny flat” for him under their house.

191. In these circumstances it is noteworthy that the respondent did not depose in his affidavit that he had not earlier foreseen that the house might become unsuitable for his needs. He did swear that he sought legal advice “when it became evident that I could no longer continue living in the property” but he refrained from deposing that he had not earlier foreseen this eventuality or that this explained his delay. Instead, he put forward a different explanation for his delay. He swore in both of his affidavits in clear and unequivocal terms that he had not made an application in time for one reason: he had been unaware of his right to do so until he met with his solicitors in mid July 2007.

192. In my respectful opinion on this evidence the primary judge erred in holding that the deterioration in the respondent's health and the resulting unsuitability for him of the house provided an acceptable explanation for the applicant's delay in making the application. An inference to that effect was not reasonably open when this result was foreseeable from the outset and was actually foreseen, the respondent did not apply for a long time after it was clear that the house would in fact become or already had become unsuitable for his needs, and he did not swear to this as an explanation for his delay but provided a different explanation.

193. Nor, in my opinion, to return to her Honour’s first finding of fact, was the only explanation to which the respondent did swear an adequate explanation. Whilst the respondent swore in terms that his delay was attributable to his never having had any knowledge of his right to make a claim, that evidence must be assessed in the context of the finding of the primary judge that the respondent suffered from “memory lapses”.

194. Her Honour referred to the respondent's oral evidence and said:

"He gave evidence in court so I had the great advantage of seeing him and hearing from him and being able to assess from that what his health circumstances appear to be, how he is affected by his age and whether or not his explanations were adventitious or in fact true explanations of his state of mind.  He did appear, in giving his evidence, to be doing his best given his extreme hardness of hearing and the memory lapses consistent with his age and his health problems to give honest answers to the questions asked of him."

195. There is no basis for rejecting her Honour’s view that the respondent did his honest best in giving his evidence, but that does not diminish the significance of the memory lapses to which her Honour referred.

196. Her Honour’s finding that the respondent suffered from memory lapses is of particular significance when one has regard to the evidence that justified the finding. One example of particular importance in this appeal is that although the respondent swore that it was his signature on the pre-nuptial agreement he swore that he had no recollection of signing that document. He also swore that "I … do not recall seeking independent legal advice."

197. In view of the primary judge's findings about the respondent's credibility, it must be accepted the respondent did not have any such recollection but there is a strong basis for inferring that the respondent did in fact receive such legal advice. Clause 13 of the pre-nuptial agreement, which concluded on the execution page of the document, provided that the Testatrix and the respondent "wished their intentions to be taken into account if either make an application under State Testator's Family Maintenance Legislation". In that significant context, the pre-nuptial agreement recited that separate legal representatives had advised each party independently before executing that agreement concerning its legal effect.

198. The pre-nuptial agreement was plainly a document of considerable significance for the respondent. Acceptance of the truth of the respondent’s evidence that he had no memory of that agreement or of receiving the independent legal advice identified in it is not easy to reconcile with acceptance of the view that he could remember that he had never been advised of his right to make the “application under State Testator's Family Maintenance Legislation” described in the agreement. It is more likely that the respondent had received the independent advice recited in the pre-nuptial agreement but (on the primary judge’s findings) had forgotten it at some unidentified time.

199. Further, it is evident that the primary judge attributed various other significant discrepancies in the respondent’s evidence to his poor memory associated with his age and health issues. For example, the respondent swore in his first affidavit that he wished to obtain further provision out of the estate to buy a small unit near his daughter and son-in-law’s house. In his second affidavit he sought provision for his daily care needs and for future nursing home accommodation expenses. In oral evidence he took an entirely different tack. He made it clear that, as was suggested by the negotiations before the application, he intended to use any further provision out of the estate as a contribution to the construction of a “granny flat” under his daughter and son-in-law’s house.

200. On the whole of this evidence, in my respectful opinion her Honour erred in finding that the respondent did not know until quite recently of any right to claim further maintenance and support from the estate of the Testatrix. At most, the finding which was open was that if the respondent had any such knowledge he had forgotten it for some unspecified period before he was advised of it by his solicitor in July 2007. That is not a persuasive explanation of the quite significant delay in this case, particularly when one considers the prejudice associated with it.

Prejudice

201. The primary judge's finding as to prejudice was expressed in the following terms:

"In my view there is no prejudice to the respondents in this application being made now as opposed to being made within the nine months so that matter need not further concern me."

202. In my respectful opinion her Honour misdirected herself as to the appropriate test and erred in concluding that extending the time would occasion no prejudice.

203. Whilst in applications of this kind it will often be the case that any prejudice has accrued after the expiry of the limitation period, it is not only the "marginal prejudice created by the delay"^[74] which is relevant in an application to extend a limitation period.  In determining whether the court should exercise its discretion to direct that the application should be heard even though it was not instituted within the nine month limitation period after the death of a deceased, the question was not whether lapse of time after that period had created prejudice which did not exist during the period.  The question was whether, having regard to the circumstances which existed at the time of the application, it was just to grant the extension of time sought by the respondent. 

204. One of those circumstances was the apparently very poor state of the respondent’s memory. An assessment of the “totality of the relationship”^[75] between the Testatrix and the respondent (including the significance of the pre-nuptial agreement) lay at the heart of the application, but the respondent’s memory of critically relevant matters appeared to have been significantly impaired by the time the application was brought.  The risk to a fair trial of the proposed application for provision out of the estate that this produced in my opinion weighed against a favourable exercise of discretion to extend the limitation period. 

Prospects of success

205. Subsection 41(1) empowered the court to order further provision out of the estate if “adequate” provision was not made in the will for the “proper” maintenance and support of the respondent. Against the factual background I set out earlier the respondent must encounter difficulty in establishing that the limited right of residence provided by the will (with the bequest) was “inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.” ^[76]

206. The respondent’s counsel cited an extract from Kirby J’s judgment in Barns v Barns^[77] for the proposition that the pre-nuptial agreement was not a significant factor in determining whether adequate provision was not made in the will for the proper maintenance and support of the respondent.  In that passage, his Honour emphasised that the starting point in a case of the present character is the ascertainment of the true operation of the legislation.  His Honour added that contractual arrangements “must, once valid legislation impinges on the conduct of parties, be understood and applied subject to the operation of that legislation, construed so as to achieve its purpose as expressed in the chosen language.” 

207. That passage is in no sense inconsistent with the pre-nuptial agreement being taken into account under the legislation as one aspect of the “totality of the relationship” between the respondent and the Testatrix. The parties cannot contract out of the legislation of course, but that is not to say that a private contract may not be a relevant feature of their relationship for the purpose of evaluating, as the legislation requires, whether adequate provision is made for the proper maintenance and support of an applicant.

208. The relationship between the respondent and the Testatrix included the pre-nuptial agreement. This was a marriage made relatively late in life and on terms that the parties to it wished to keep their own assets largely for themselves and their separate families. The marriage endured until the death of the Testatrix for eight years and on those terms, so far as the evidence reveals: the evidence does not indicate that the parties contributed material assets to a common pool or that the respondent otherwise materially contributed to the property of the Testatrix during the marriage. The property owned by the Testatrix was derived in large part by inheritance from the father of the Testatrix’s children, to whom she felt an understandable moral duty to pass on the bulk of her estate.

209. The strength of a pre-nuptial agreement as one of the relevant factors must of course vary from case to case:^[78] in this case, the brief summary of the evidence I have given suggests that this pre-nuptial agreement provides considerable support for the view that the provision in the will was “adequate” for the “proper” maintenance and support of the respondent.

210. One difficulty for the case mounted by the applicant is that he did not clearly establish his financial position as at the date of death of the Testatrix. At that time, the respondent’s four adult children were (on the respondent’s own evidence) each “financially independent”. Two of them owed the respondent substantial sums of money (he had lent one $40,000 and another $30,000), but the evidence adduced on his behalf did not explain how much they still owed him or what financial resources were at their disposal to repay the debts. Apart from the value of those loans the respondent’s affidavit evidence of his own financial resources, whilst not particularly clear, suggested that he did not have the resources to pay for alternative accommodation of a kind which would be suitable for him; but in cross-examination he seemed unable to provide a satisfactory account of what had become of some unspecified part of his superannuation of $130,000 and an investment of $170,000.

211. A related matter is that the “totality of the relationship” included that the respondent had four adult children who, so far as the evidence goes at least, were apparently willing and capable of providing for their father.

212. The primary judge found that the respondent had reasonable prospects of success on an application for further provision to be made from the estate. It may be that her Honour meant to convey no more than that the claim was arguable. But whether one is to make the value judgment demanded by s 41(1) by reference to the traditional test of what a “wise and just” testatrix would have thought was her “moral obligation” to the respondent,^[79] or by reference only to the statutory concepts of adequacy and propriety without that possible “gloss on the statutory language”,^[80] for the reasons I have given my view is that the evidence adduced by the respondent did not establish a strong case.

Re-exercise of the discretion

213. The errors I have mentioned influenced her Honour's exercise of discretion to grant the extension, with the result that is necessary for this Court to exercise the discretion afresh.^[81] 

214. The respondent brought his application more than four and a half years after the Testatrix died on 26 February 2003. Although much longer delays have sometimes been excused, measured against the time limit of nine months specified in s 41(8), the respondent's delay in applying was substantial. The delay was not persuasively explained and it resulted in some prejudice to the appellants.

215. For the reasons I gave earlier, the respondent did not demonstrate a strong case.

216. It has been held that the strength of the case is one of the relevant discretionary factors.^[82]  An apparently strong case may in some circumstances constitute one of the factors that favours the grant of an application.^[83] An example of that approach may be found in the High Court's decision in Neil v Nott^[84].  After setting out facts which demonstrated a powerful case for provision out of the estate in the applicant’s favour and an explanation for the delay in applying, the Court said that “it would require a substantial reason to refuse Mr Neil four months extension of time.”

217. On the other hand, if it appears that an application must fail there would be no point in granting an extension. In Re Terlier, Deceased^[85] Townley J said:

"But there is another factor which to my mind plays an important part in such an application as this.  If it is improbable that the substantive application will succeed it seems idle to grant the extension."

218. The reference by his Honour to it being "idle" to grant the extension suggests that his Honour intended his reference to success being “improbable” to convey that the proposed application was bound to fail. The decision appears to have been understood in that way by Lush J in Re Walker^[86].  His Honour, who affirmed the correctness of the proposition stated by Townley J, said that: 

"… the proper approach is that an applicant, seeking the indulgence of the Court as the present applicant does, must show he has an arguable case to present if time is extended in his favour. That is, I think, a general principle underlying the rules that are applicable to many comparable situations and is consistent with, or part of, the general policy of the law to discourage litigation which can serve no useful purpose. 

…

But to say that an extension ought not be granted merely because the case is unanswerable is not to say that an extension will be granted without regard to the fact that the case is groundless."^[87]

219. As that passage also indicates proof of a good claim is of itself insufficient to justify an extension of time. Limitation periods catch good and bad claims alike. A fortiori, the mere fact that an applicant demonstrates no more than an arguable case for relief does not provide sufficient reason for granting an extension of time. ^[88]

220. In summary, there was substantial delay in applying, an unsatisfactory explanation for that delay, some prejudice to the appellants, and the respondent did not establish that he had a strong case. The onus was upon the respondent to establish that it was just to extend time.^[89]  In the circumstances I have described, in my opinion the respondent failed to make out a case for the exercise of the discretion in his favour. 

Disposition

221. I would allow the appeal with costs, set aside the orders made by the primary judge, and instead of those orders I would order that the respondent’s application be dismissed with costs.