Bronislava Adamow; Richard Adamow and Christina Jack v Peter Sarafiniuk and Richard Seczawa (As Executors of the Will of Jan Adamow, Deceased) [1989] ACTSC 40 (18 August 1989)

SUPREME COURT OF THE ACT

BRONISLAVA ADAMOW; RICHARD ADAMOW and CHRISTINA JACK v. PETER
SARAFINIUK and RICHARD SECZAWA (as Executors of the will of
JAN ADAMOW, Deceased)
S.C. No. 953 of 1988
Testator's Family Maintenance

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Testator's Family Maintenance - application by widow and two adult children - testator leaving substantial estate - provision therein for residue of whole estate to be given to impoverished nephews and nieces - no provision for widow and two children - whether testator failed to make proper provision for maintenance of his widow - variation of will - Family Provision Act 1969 s.8(1) (ACT).

Goodman v. Windeyer and Others (1980) 31 ALR 23

Pontifical Society for the Propagation of the Faith v. Scales [1962] HCA 19; (1961-1962) 107 CLR 9

re Allen (Deceased), Allen v. Manchester and Another (1922) NZLR 218

HEARING

CANBERRA
18:8:1989

ORDER

The will be varied so that each of the five children of the testator's late brother, Michael Adamow, who are mentioned in clause 5 of the will, receive a bequest of $5,000 each and the residue of the estate go to the applicant, Bronislava Adamow.

Clause 3 of the will be revoked.

The costs of this application be paid from the estate on a common fund basis.

There be liberty to the parties to bring in short minutes of order to give effect ot the findings and rulings.

DECISION

This is an application made by originating summons under s.8 of the Family Provision Act 1969 (ACT). The plaintiffs are widow, son and daughter respectively of the testator, Jan Adamow. Another son, Michael Adamow, has not been joined as a plaintiff although he states in an affidavit sworn on 9 March 1989 that he supports the claim made by his mother (Mrs. Adamow) that the Court should order that provision be made out of the estate of the testator so that "the whole of the testator's bounty" may be conferred upon her. The son and daughter, who are plaintiffs, also join in that application on behalf of Mrs. Adamow.

2. The testator died on 3 November 1987 at Woden Valley Hospital in the ACT aged 61 years. On 27 April 1988 probate was granted of his will executed on 5 December 1986. The will appointed the present defendants as executors and went on to make the following dispositions:
"3. I GIVE the sum of Fifteen thousand dollars

($15,000.00) and any motor vehicle that I
may own at my date of death to my son
MICHAEL ADAMOW of 14 Steel Street, Hackett
in the said Territory.
4. I GIVE the sum of One hundred and fifty
dollars ($150.00) to each of my executors
the said PETER SARAFINIUK and RICHARD SECZAWA.
5. SUBJECT to the payment of my debts and
liabilities funeral and testamentary
expenses and all duties payable on or in
connection with the whole of my estate I
GIVE the residue of my estate both real and
personal whatsoever and wheresoever situate
unto the children of my late brother MICHAEL
ADAMOW late of 73/320 Wegorzyno, Szczecin,
Poland as tenants in common in equal shares,
the said children being STEFANIA ADAMOW,
MOZEF ADAMOW, ZOSIA ADAMOW, TRENA ADAMOW and
JAN ADAMOW."

3. Clause 6 of the will gave specified powers to the trustees. Clause 7 was in the following terms:

"7. I have made no provision for my wife or
other children due to personal reasons of
which they are well aware."

4. The testator was born in Poland on 2 February 1926. Mrs. Adamow was born on 15 February 1929 also in Poland. The deceased came to the Australian Capital Territory in about 1949. He and his wife married on 1 June 1963. There are three children of the marriage, Michael Adamow, born 16 February 1965, Richard Adamow, born 12 May 1966 and Christina Jack, now married, also born 12 May 1966.

5. For twenty-three years prior to his death the testator worked as a painter in the Australian Public Service, reaching the level of Supervisor during the last years. Mrs. Adamow worked as a cleaner since 1971.

6. The matrimonial home at 14 Steele Street, Hackett was purchased in the joint names of the testator and his wife. It passed to her on the testator's death. There had been a mortgage over the home. The testator had met the mortgage payments from his wages and the mortgage was discharged some time before his death. Mrs. Adamow met other household expenses from her wages. The joint savings of the parties went into savings accounts which were held by the testator at the time of his death in his own name. The testator also owned a small motor car which he had purchased many years before his death. The total value of his estate was $129,060.46.

7. The former matrimonial home is now worth about $95,000. Mrs. Adamow is still working and earns about $28,000 per year before tax. In an affidavit she states that her approximate outgoings are $27,000 including tax. She has a debt of $10,000.

8. Mrs. Adamow is in poor health and does not wish to work any longer. The children are all self-supporting and join in the application that the whole of the estate be conferred upon their mother.

9. In later years the testator became increasingly antagonistic and suspicious of his wife and children. I am quite convinced that there was no justification for his suspicion, that it was irrational and arose out of mental infirmity.

10. About five years before his death the testator told the first defendant (who was a friend) that he wanted a divorce, complaining that his wife and children did not show him any respect. In July 1978 both the testator and his wife had made mutual wills, but in later years the testator spoke of changing his will. He developed chronic liver disease, which eventually caused his death. During the last four years of his life the testator became more aggressive and irrational, perhaps as a result of the liver disease. After a period in hospital, which I think was in about 1985, he expressed fears that his wife was trying to poison him and had done something about destroying or cancelling his will. It appears that at that stage he contemplated making a will which would exclude his wife and children (except his son Michael) from receiving any benefits from his estate.

11. At about the same time the testator's thoughts turned increasingly to his native Poland and those members of his family who still resided there. He exhibited a growing concern for his brother and the children of his brother who lived in Poland. He sent parcels of used clothing to them and in September 1984 remitted $20,000 to his brother, Michael Adamow in Szczecinski Poland. That was accompanied by a suggestion in a letter written by the testator to his brother on 11 September 1984 that a monument be erected on their mother's grave, evidenced by the brother's letters in reply apparently dated 11 October 1984 and 9 January 1985. In the latter, Michael Adamow wrote that he could no longer work because of illness. The letters between the two brothers display a renewal of fraternal warmth which had been apparently absent, or at least very intermittent, in the previous years. I have no hesitation in drawing the conclusion that the brother and his family were in far less comfortable material circumstances than the testator and his family.

12. The brother predeceased the testator but the exact date of his death is not shown on the evidence.

13. The present circumstances of the testator's nieces and nephews, to whom he left the residue of his estate, were set out in signed written statements which were received into evidence. There was objection on behalf of the plaintiffs to the admission of these documents, but I ruled that they were admissible under s.29 of the Evidence Ordinance 1971. Further, in my view, there is no reason why those statements should not be accepted as truthful accounts of their material circumstances and living conditions. None of them claims or admits to be living in poverty, but they are virtually without assets except one nephew who is paying off a house. The others live with their families in small apartments of two or three rooms and a kitchen.

14. The jurisdiction of the Court to make provision out of the estate of a deceased person is conferred and circumscribed by s.8(1) of the Family Provision Ordinance 1969. The jurisdiction arises only "if the Court is satisfied that adequate provision is not available, under the terms of the will ..... from the estate of the deceased person for the proper maintenance, education and advancement in life of the person by whom, or on whose behalf the application is made". Clearly in the case of the present widow, the questions of education and advancement in life do not arise and the Court must be satisfied that before any order may be made in her favour that proper maintenance is not available under the terms of the will.

15. Counsel for the plaintiffs has relied upon the behaviour of the testator, particularly during the last few years of his life, to support the submission that the testator failed to make proper provision in his will for his widow's maintenance. Conversely, it was submitted that Mrs. Adamow is entitled to have taken into account in her favour the fact that she rendered domestic support to the plaintiff over a long marriage, and that it was she rather than the testator who attended to the needs and welfare of the children. The testator seems to have been somewhat over strict and even mean in his attitude to the children. There is nothing on the evidence to support any suggestion, even if one were made, that the hostility and suspicion of the testator could justifiably be regarded as arising out of the behaviour of his wife. The testator had placed the savings derived from their joint incomes in bank accounts in his own name, and there is possibly a case that these were held on behalf of himself and his wife jointly. Although by survivorship Mrs. Adamow has acquired the house in her own name, she is not left with any means of support except her own labour. She is now 60 years of age and not in good health. She clearly needs some source of income apart from whatever might be available to her by way of social security to maintain anything like the comfortable standard of living that she and the testator had attained during his lifetime. The testator should have made some provision for her maintenance. I have little hesitation in concluding that the testator failed to make proper provision for the maintenance of Mrs. Adamow by the provisions of his will. In Goodman v. Windeyer and Others (1980) 31 ALR 23, Gibbs J., as he then was, said at p 32:

"It is commonly said that the fact that the
applicant has been left without such adequate
provision is a condition of jurisdiction, but to
express the matater in that way shows "more
respect for the language of Chancery tradition
than of juristic theory": per Dixon C.J. in
Blore v. Lang [1960] HCA 73; (1960) 104 CLR 124 at 128; the
condition is, strictly speaking, a condition of
the power. The decision of the question whether
this condition has been fulfilled "involves the
application to the facts of a legal criterion",
to use the words of Aickin J. in White v. Barron
(30 ALR at 66), but the nature of the
criterion is such that in its application the
court, in my respectful opinion, is called upon
to exercise a discretionary judgment. As Dixon C.J.
pointed out in Pontifical Society for the
Propagation of the Faith v. Scales [1962] HCA 19; (1962) 107
CLR 9 at 19, the words "adequate" and
"proper" are always relative. There are no
fixed standards, and the court is left to form
opinions upon the basis of its own general
knowledge and experience of current social
conditions and standards: see Re Hodgson (1955)
VLR 481 at 491-2, per Sholl J. For those
reasons I share the view expressed by Mason J.
in White v. Barron that the twin tasks which
face the primary judge are similar, and that it
would be artificial to say that the exercise of
discretion begins only when the judge has
completed the first of his tasks and decided
that the appellant was left without adequate
provision for proper maintenance."

16. Having decided that the Court has jurisdiction, I now proceed to the next two questions. The first is whether in the exercise of discretion any provision ought be made by the Court in favour of Mrs. Adamow and, if so, the second question is what that provision should be. These two aspects were rolled together in the submission of counsel for the plaintiffs, who submitted that Mrs. Adamow had an overwhelming claim which annihilated any claim by the residuary beneficiaries named in the will. Accordingly, such overwhelming claim required an order whereby the whole of the testator's estate would pass to Mrs. Adamow. On the other hand, so it was submitted, the beneficiaries had no moral claim to any of the estate of the testator and the testator had no moral duty to make provision for them.

17. It is true that the cases are full of references to "moral duty". At the same time there have been judicial warnings about such a vague and elastic concept. In Pontifical Society for the Propagation of the Faith v. Scales [1962] HCA 19; (1961-1962) 107 CLR 9, Dixon C.J. said at p 20:

"'Duty' no doubt does not afford an exclusive
test, indeed it is not right to treat it
strictly as a test at all. It is but an
element, however important an element, that is
to be taken into account in weighing all the
considerations."

18. In Goodman v. Windeyer Murphy J. said at page 34 that "the question of whether an applicant was left without adequate provision is confused by the introduction of considerations of moral duty".

19. In looking at the circumstances in Scales' case, Dixon J. went on to say that it was hard to see why the testator, in the interest of a son who was an applicant, should be deprived of his complete freedom of testimentary disposition.

20. I think that a similar approach should be taken in the overall circumstances of the present case. There is no requirement in the law that a person to whom a testator has left all or part of the testator's estate should have to justify the testator's decision at all, let alone on the basis that what the testator did was compelled by moral duty. Counsel for the defendants properly withdrew a submission that in order to uphold the provisions of the will it had to be shown that the testator was under a duty to provide for his nieces and nephews. In my view, to inquire whether such a duty existed is a futile task. Opinions will differ on whether the rich should contribute to the poor and if so, how much. Even if one applied the sort of test enunciated in such cases as Re Allen (Deceased), Allen v. Manchester & Anor. (1922) NZLR 218 at p 220, namely whether a wise and just testator in the position of the testator and aware of all the circumstances, would have regarded himself under a duty to make provision for his nieces and nephews in Poland, how would one arrive at a satisfactory answer? There may be cultural factors which ought to be taken into account and of which the Court is unaware. I think that in a case such as this the question to be asked is: Given that the testator has not made adquate provision for the maintenance of his widow, can the Court by order make adequate provision for the widow whilst at the same time respecting the wishes of the testator that some provision be made for his nieces and nephews? I reject the submission made on behalf of the plaintiffs that once it has been shown that a testator has left an applicant without proper maintenance, then the provisions of the will are to be varied so as to make provision for those who are entitled to apply under the statutory provisions without regard for the interests of beneficiaries selected by the testator who have no such statutory rights. I do not think that the Court must limit its order to provision in favour of those persons who are entitled to apply as prescribed members of the testator's family so as to exclude beneficiaries in whose favour the testator made provision. No authorities were cited to support the plaintiffs' submissions on this aspect and I think that they must fail. It has been said on many occasions that the Court is not to try to rewrite the testator's will. Finding that the testator has failed to make proper maintenance does not mean that the testator's will is to be disregarded and that the Court will distribute his estate amongst those entitled to apply under the Act without regard to the wishes of the testator as embodied in the will. In my view, the Court needs to vary the terms of the will only insofar as it is necessary to make proper provision for an applicant for whom inadequate provision has been made. To hold otherwise would be contrary to the approach taken by the High Court in Scales' case. There the residue of the estate had been left by the testator to a number of charities. The Supreme Court of Queensland made an order increasing the provision for the widow and making a bequest in favour of the son. The High Court held that the order in favour of the son should be set aside. The order in favour of the widow was not the subject of the appeal to the High Court. In the result, the provision in favour of the residuary beneficiaries, survived but was reduced in value by the effect of the order increasing the provision for the widow.

21. A just and wise testator in the position of Jan Adamow, aware of all the circumstances, would not have acted upon the false premise that his wife had set out to poison and destroy him. He would have borne in mind that his wife would acquire the matrimonial home by survivorship, that she was probably entitled to half of the accumulated savings which happened to be held in his name instead of a joint account and he would have made some positive provision for her maintenance in his will. That does not mean that he must have neglected the children of his deceased brother. In my view, it is possible in the circumstances of the present case to make provision for the proper provision of Mrs. Adamow which the testator should have done, whilst at the same time recognizing his intention that his nieces and nephews should benefit from the modest accumulation of wealth that he, unlike his brother, had acquired in a new land. The payment to the testator's brother of $20,000 in 1984 must be taken into account, but in my view, it does not mean that the Court should refuse to recognize the wishes of the deceased with regard to the nieces and nephews.

22. There is no material before the Court relating to social security payments which may be available to Mrs. Adamow once she stops working. I take judicial knowledge of the fact that her ownership of the home will not be taken into account in any means test. Apart from that I do not know how much she would receive by way of aged person's pension, for instance, or when she might be expected to be entitled to it, or how the acquisition of all or part of the money now standing in the name of the executors would affect the level of any pension she might obtain. I would assume that if an order were made in her favour then it would be securely invested, bringing in a modest rate of interest, but so placed that at least part of the capital could be drawn on from time to time should Mrs. Adamow so desire. There is an amount of about $137,000 available for distribution after payment of liabilities and testamentary expenses. I note that this sum includes the estimated value of the motor car which is no doubt beginning to show its age and which will probably need replacement shortly by a similar type of vehicle. The cost of these proceedings still has to be met. Doing the best I can in the circumstances, I think that if Mrs. Adamow were left with $100,000 or thereabouts that would be sufficient to provide her with adequate maintenance. There was no argument that the bequest of $15,000 and the motor vehicle to the son Michael meant that Mrs. Adamow was left without adequate maintenance. Michael now disclaims the bequest, and I propose to take that into account.

23. In my view, the order of the Court should have the effect of varying the will so that each of the five children of the testator's late brother, Michael Adamow, who are mentioned in clause 5 of the will, receive a bequest of $5,000 each and so that the residue of the estate go to the applicant, Bronislava Adamow. Clause 3 of the will should be revoked. I propose to order that the costs of this application be paid from the estate on a common fund basis.

24. I give liberty to the parties to bring in short minutes of order to give effect to the above findings and rulings.