Easterbrook v Young [1977] HCA 16; (1977) 136 CLR 308 (15 March 1977)

HIGH COURT OF AUSTRALIA

EASTERBROOK v. YOUNG. [1977] HCA 16; (1977) 136 CLR 308

Testator's Family Maintenance (N.S.W.)

High Court of Australia
Barwick C.J.(1), Mason(1) and Murphy(1) JJ.

CATCHWORDS

Testator's Family Maintenance (N.S.W.) - Provision for family of deceased person - Provision out of estate of deceased - Estate fully administered - Estate assets held by personal representative on trust for beneficiaries - Whether assets still part of deceased's estate - Testator's Family Maintenance and Guardianship of Infants Act, 1916 (N.S.W.), SS. 3, 4, 5, 6, 11.

HEARING

Sydney, 1976, November 11; 1977, March 15. 15:3:1977
APPEAL from the Supreme Court of New South Wales.

DECISION

1977, March 15.
THE COURT delivered the following written judgment: -
On 13th July 1973, the appellant applied to the Supreme Court of New South 1916 (N.S.W.), as amended ("the Act"), first, for an order under s. 5 (2A) of the Act extending the time within which an application might be made under s.3 (1A) of the Act for her maintenance out of the estate of her late husband and, secondly, for an order providing for such maintenance. (at p311)

2. The deceased left a small estate of which the only asset of consequence was a cottage, used in his lifetime as the family home. He died intestate. Letters of administration were granted in 1959 to the respondent, who is one of two sons of the marriage. By dint of the provisions of the Wills, Probate and Administration Act, 1898 (N.S.W.), as amended, the appellant and her two sons were each entitled to one third of the estate: and by that Act, the respondent on appointment as administrator became a trustee of the intestate estate for the appellant, himself and his brother: see ss. 61A and 49 (1) . The debts and expense of administration having been paid, the respondent in 1959 published a notice of his intention to distribute the estate of the deceased amongst the persons entitled thereto. In 1960 the title to the cottage held under the provisions of the Real Property Act, 1900 (N.S.W.), as amended, was duly transmitted to the name of the respondent as administrator. A Registrar-General's caveat against dealings protected the interests of those beneficially entitled. No beneficiary sought a transfer to himself of a share in the property. (at p311)

3. Since her husband's death the appellant, apparently with the concurrence of the sons, has continued to live in the cottage, paying the outgoings on the property. In 1971 the cottage was valued at $13,250, though in a bad state of repair. The appellant has no means and is in receipt only of an age pension of a little more than $40 per fortnight. She is in no position to meet the continuing outgoings in respect of the property or to effect any repairs to it. No countervailing evidence of the financial situation of her two sons has been placed before the Court. (at p311)

4. No application was made by the appellant within the time permitted by s. 5 (1) for an order under the Act. Such an application can now only be made by her if time in that behalf is extended pursuant to s. 5 (2A). (at p312)

5. By s. 3 (1) of the Act, where a person disposes of his property by will in such a manner that his widow, husband or children "are left without adequate provision for their proper maintenance, education, or advancement in life" the court may "order that such provision for such maintenance, education, and advancement as the court thinks fit shall be made out of the estate of the testator for such wife, husband, or children, or any or all of them". (at p312)

6. By s. 3 (1A), the court is given similar power to make orders out of the estate of a person who dies intestate and has left his widow, children or any or all of them without adequate provision for their maintenance, education or advancement in life. (at p312)

7. Section 4 provides:

"(1) Every provision made under this Act shall, subject to
this Act, operate and take effect as if the same had been
made by a codicil to the will of the deceased person executed
immediately before his or her death.
(2) Any order made under subsection (1A) of section 3 in
respect of the estate of a deceased person shall, subject to this
Act, operate and take effect as a modification of the
provisions of the Wills, Probate and Administration Act,
1898, as amended by subsequent Acts, that are applicable to
the distribution of that estate as on intestacy." (at p312)

8. It is provided that application by a person seeking an order under the Act shall be made within twelve months from the date of the grant or re-sealing of probate or letters of administration in New South Wales: s. 5 (1). However, s. 5 (2A) (a) makes provision for the extension of time within which applications may be brought. It provides:

"(2A) Notwithstanding anything in subsections (1) and
(2) -
(a) the time for making an application under either of
those subsections may be extended for a further period
by the court, after hearing such of the parties affected
as the court thinks necessary, and this power extends
to cases where the time for applying has already
expired, including cases where it has expired before the
commencement of the Administration of Estates Act,
1954; but every application for extension shall be made
before the final distribution of the estate, and no
distribution of any part of the estate made before the
application shall be disturbed by reason of the
application or of an order made thereon."

The operation of s. 5 (2A) (a) is subject to the existence of any agreement in writing made by the widow or widower and all the children after the death of the testator or intestate by which they agree to be bound by the terms of the will or by the statutory provisions regulating the distribution of intestate estates, as the case may be, in which event no application can be made under s. 3 (1) or (1A): see pars (b) and (c) of sub-s. (2A). (at p313)

9. Section 6, so far as it is material, provides:

"(1) Every order making any provision under this Act shall
inter alia -
(a) specify the amount and nature of such provision;
(b) specify the part or parts of the estate out of which such
provision shall be raised or paid, and prescribe the
manner of raising and paying such provision;
(c) state the conditions, restrictions, or limitations
imposed by the court.
(2) Unless the court otherwise orders, the burden of any
such provision shall as between the persons beneficially
entitled to the estate of the deceased person be borne by those
persons in proportion to the values of their respective
interests in such estate:
Provided that the estates and interests of persons
successively entitled to any property which is settled by such
will shall not for the purposes of this subsection be separately
valued, but the proportion of the provision made under this
Act to be borne by such property shall be raised or charged
against the corpus of such property.
. . .
(4) The court may at any time and from time to time on the
application by motion of the executor of the testator's estate
or of the administrator of the estate of the intestate or of any
person beneficially entitled to or interested in any part of the
estate of the deceased person rescind or alter any order
making any provision under this Act. Notice of such motion
shall be served on all persons taking any benefit under the
order sought to be rescinded or altered."

10. Section 11 provides:

"(1) Where an executor or administrator has given such or
the like notices as in the opinion of the court before which an
application under this Act is made would have been given by
the Supreme Court in its equitable jurisdiction in an
administration suit for creditors and others to send in to the
executor or administrator their claims against the estate of
the testator or intestate, as the case may be, such executor or
administrator may, at the expiration of the time named in the
said notices, or the last of the said notices, for sending in
such claims, distribute the assets of the testator or intestate,
as the case may be, or any part thereof, amongst the persons
entitled thereto, having regard to any applications under this
Act of which such executor or administrator has then notice.
(2) Such executor or administrator shall not be liable for the
assets, or any part thereof, so distributed to any person of
whose application under this Act he has not had notice at the
time of such distribution.
(3) Nothing in this section shall prevent the court from
ordering that any provision under this Act shall be made out
of any assets so distributed." (at p314)

11. The Supreme Court (Holland J.) dismissed the appellant's application under s. 5 (2A) and consequently the application for maintenance, holding that there being no estate of the deceased at the date of the application, because there had been a final distribution of the estate, there were neither jurisdiction to extend the time for making an application under s. 3 (1A) nor to make an order under that section (17). In so deciding, the Supreme Court followed decisions of the New Zealand, Victorian and Queensland courts which held that upon the completion of administrative duties by the payment of debts, duties and costs of administration, and, in the case of an executor, upon his assent to the gifts of the will, there remained no estate of the deceased out of which an order could be made. Consequently, it was held that there was no jurisdiction to extend time under s. 5 (2A). (at p314)

12. The learned judge said that, if uninhibited by the earlier decisions, he would have: (1) held that he had the relevant jurisdiction; (2) extended the time for making an application; and (3) made an order in favour of the applicant, giving her a life estate in the cottage. (at p314)

13. The appellant submits that the decisions which his Honour thought to be authoritative or persuasive ought not to be followed and that, upon the true construction of the Act, there is jurisdiction in the circumstances of this case to extend time and to make an order for maintenance. (at p314)

14. It may be conceded at the outset that the reference to "the estate of" the deceased in s. 3 constitutes a limitation on the power of the court to make an order. At the same time, that estate is nominated as the source of any provision which may be made. It may also be conceded that the reference in s. 5 (2A) to a "final distribution of the estate" limits the court's jurisdiction to extend the time for making an application for an order for maintenance. But the question in the case is the meaning to be attributed to these expressions in the context in which they are found. The interpretation which they are to be given depends on the terms of the Act read in accordance with the purpose and policy of the Act as evidenced by its provisions. Testator's family maintenance legislation throughout Australia is in relevant respects in common form, the New South Wales Act being a typical example, with the consequence that the decision in this case will determine the meaning and effect of comparable provisions elsewhere in Australia.

(at p315)
15. Although the Court is not bound in point of precedent by any of the decisions which were thought to constrain the Supreme Court in this case, they constitute a body of authority of long standing and the Court will give weight to the reasoning on which they are based to the extent that it is persuasive. But, in the long run, it is for the Court itself to construe the Act. With this in mind, we must look to the provisions of the Act before examining the case law. In approaching the Act, we do so with the knowledge that earlier decisions have taken the change in the capacity in which the personal representative holds the assets left by the testator as ending the capacity of the court to interfere with the dispositions of the will or the statutory trusts applicable in the case of intestacy. In arriving at this result, judges have applied in the construction of the Act doctrines relating to the powers of the personal representative and the nature of the interest of the beneficiaries in the assets dealt with by the will. (at p315)

16. The fundamental question to be decided, then, is whether the change in the capacity of the executor or administrator, if indeed in the latter case there is any such change, in whose hands or name the property remains is relevant to the construction of the Act. (at p315)

17. We turn now to the relevant provisions of the Act. The court's order has effect as a codicil in the case of a testate estate and as a variation of the statutory trusts in the case of an intestacy. The court, by the effect of its order, can alter the operation of the very dispositions of the will which might otherwise determine the capacity or power of the personal representative as well as the beneficial interests which would otherwise arise. As a codicil, the court's order operates as on the death of the deceased: see s. 4 (1) and (2) . The evident purpose of the Act is to place the assets of the deceased passing to the personal representative at the disposal of the court in the provision of maintenance for the nominated dependants of the deceased. Because the court's order has effect as a codicil, the property out of which provision may be ordered includes property which, but for the order, would have been beneficially owned either wholly or partly by donees under the will or next of kin under an intestacy. It is plain that the burden of an order is to be thrown on property to which persons are beneficially entitled under the will or on intestacy. Further, the Act contemplates that after an order has been made it may be revoked or varied at the instance, amongst others, of persons beneficially interested in any part of the estate, persons who may have been disadvantaged by the court's order. Again, an actual distribution of the deceased's property to persons beneficially entitled thereto shall not preclude the making of an order, even out of the distributed assets. Section 11 (3) is explicable only on that footing. The Act in so providing assumes that the sub-section at least covers the case where executorial or administrative duties have already been fully performed before such distribution has taken place. Thus, by the very terms of the Act, if an application is made in due time, the court may make provision out of any asset which came to the hands of the personal representative from the deceased through his death and the grant of probate or letters of administration. It is, in our opinion, to the totality of those assets that the Act refers in authorizing the court to make provision out of the estate of the deceased. As we have emphasized, to give to the court's order the effect of a codicil operating as on the death of the deceased, underlines the fact that the provision of a beneficial interest under the will is no bar to the court's power to make provision for maintenance if needs be out of what is theirs or, but for the order, would be the beneficial property of a beneficiary under the will. Section 11 (3) underlines the policy, which has the result that an actual distribution does not place the asset beyond the reach of the court's power to order maintenance. (at p316)

18. Further, that policy is already shown in the terms of s. 5 (2A). Because the application is out of time a final distribution, which clearly means a complete distribution, will prevent the extension of time: and thus the power to make an order. But if the distribution has only been partial, time may be extended: however, in contrast to the situation of an application made within time, the partial distribution which has taken place will not be disturbed by an order for maintenance made on an application made in the extended time. The contrast of s. 11 (3) read with s. 3 and s. 5 (2A) is, to us, eloquent of the policy of placing within the power of the court under s. 3 all that passed to the personal representative on the grant of probate or letters of administration. Bearing in mind the nature and purposes of such legislation, it is our opinion that the disabling circumstance in s. 5 (2A) is the actual distribution of the estate, its removal from the hands or name of the personal representative and its placement in the hands or name of the testamentary or statutory beneficiary. There is nothing in the language or policy of the Act to suggest that the change in the capacity in which the personal representative holds assets he has received on the grant of probate or letters of administration constitutes either a removal of those assets from the power of the court under s. 3 or a relevant distribution of the estate. (at p317)

19. It is not without significance that the Wills, Probate and Administration Act, 1898 (N.S.W.), as amended, uses the word "distribute" in the sense of a physical parting with the asset, i.e. by delivery or by transfer of title. Section 40B (3) provides that, where a grant of probate or letters of administration is made on presumption of death only, "the estate shall not be distributed without the leave of the Court". It further provides for the giving of an undertaking or security by "any person who takes under the distribution" - not under the - "that he will restore any money or property received by him or the amount or value thereof in the event of the grant being revoked". Further, the words "distribute" and "distribution" are used in the Act itself, not in the sense of a change in the capacity in which the personal representative held the asset, but clearly in the sense of a physical parting with that asset and its placing in the hands or name of an intended beneficiary: see ss. 11 and 12 of the Act. It is, in our opinion, only when the personal representative has parted with all the assets which came to his hands by the grant of probate or letters of administration that there has been a final distribution of the estate of the testator or intestate. The consequences of the contrary view - the view taken in the decided cases - seem to us to illustrate its unacceptability. (at p317)

20. The Act fixes a twelvemonth from the date of the grant of probate or letters of administration as the time within which an application for an order of maintenance may be made. There is the possibility, unlikely though it may be, that application will be made, heard and decided within that twelvemonth. Another possibility is that the application may be duly made within the prescribed period but heard and decided long after the expiry of the twelvemonth. The making of an application does not stay the administration of the estate and, in some cases at least, administration must progress in order to expose the available value of the assets left by the deceased, whether by realization of property or by resolution of disputed debts or claims. The power to make provision out of the estate of the testator is referable to a state of affairs at the time the order is made. Therefore, between the date of application and the date of the court's order upon it, administration may well have been completed: and, in a testate estate, assent made. On the view taken in the decided cases, no order could be made though the application was made in due time. (at p318)

21. Again, one can envisage the will of a testator who leaves no debts beyond funeral expenses and who, by reason of the exempt nature of the gift of his whole estate to charity, leaves an estate not subject to death or estate duties. In such a case, even within the twelvemonth of the grant of probate, the executor would have become a trustee for the charity. If we suppose that the testator has left a widow with considerable claims upon his bounty, on the interpretation which has so far been placed upon the words "out of the estate of the testator" and the word "distribution", no order could be made for the maintenance of the widow. Yet we should have thought that the Act was pre-eminently designed to cope with this very situation. (at p318)

22. In our opinion, the expression "out of the estate of the testator" refers to the assets of which the testator might at his death dispose and which have come or could come to the hands of the personal representative by reason of the grant of probate or letters of administration. When an application is made in time, it is out of these assets that provision may be made by an order operating as a codicil made by the deceased in his lifetime, even if, at the time the order is made, those assets have been distributed to the intended beneficiaries. In such a case, the limitation appearing in s. 5 (2A) is not operative. Section 11 denies operative effect to the distribution. But, of course, by reason of its terms, it is otherwise, and quite understandably so, when an extension of time is sought under that section. In that case, only a complete removal of the whole of the assets of the deceased from the hands or name of the personal representative will prevent the court extending the time for making an application for an order of maintenance. An order made in consequence of an extension of time shall not disturb an actual distribution made before the extension of time was applied for. (at p318)

23. The authorities begin with the decision of Adams J. in Public Trustee v. Kidd (1931) NZLR 1 . There the daughter of the testator made an application for an extension of time under s. 33 (9) of the Family Protection Act, 1908-1921 (N.Z.). By that sub-section it was provided that no application should be heard by the court unless the application were made within twelve months from the date of the New Zealand grant of probate, with a proviso that time might be extended if application in that behalf were made "before the final distribution of the estate". It was further provided that no distribution of any part of the estate made prior to the application should be distributed: see s. 5 (2A).

(at p319)
24. The testator's will had provided for an annuity for the applicant daughter with power in the trustee in aid of the administration and distribution of the estate to appropriate a sufficient part of the estate to provide by its annual income for the payment of the annuity. The residue of the estate was left to the testator's son, one of the executors of the will. After setting apart a sum to answer the annuity, the residue of the estate, save a small sum less than 100 pounds, was handed over to the residuary beneficiary. All that remained in the hands of the respondents to the application was that sum, and the amount set aside to satisfy the annuity. Under the general law and the terms of the will, any surplus income of the sum thus set aside, i.e. in excess of the amount of the annuity, and the unexpended capital of the sum itself on the death of the annuitant would be part of the residue to which the residuary beneficiary was entitled. (at p319)

25. His Honour correctly rejected a submission that the amount actually paid to that beneficiary in part satisfaction of the residuary gift had not been distributed within the meaning of s. 33 to which we have referred. However, his Honour went on to hold that the sum set apart to provide the daughter's annuity no longer formed part of the testator's estate as the executors had completed their duties by getting in the estate and perfecting their title by transmission of the testator's real estate into their names - presumably as executors, though this is not mentioned by his Honour. He held that thereafter they held the property both real and personal in the character of trustees for the beneficiaries. That property included the sum set apart to provide the annuity and what we have called the surplus income. His Honour relied on the settled view that executorial powers cease with the completion of executorial duties and that thereafter the executors cease to be executors and hold the property as trustees for the beneficiaries. Consequently, the appropriation of a sum to satisfy the annuity was made by the respondents as trustees. Reference was made to In re Johannes Anderson, deceased (1921) NZLR 770 ; Phillipo v. Munnings [1837] EngR 569; (1837) 2 My & Cr 309 (40 ER 658) ; Dix v. Burford (1854) [1854] EngR 740; 19 Beav 409 (52 ER 408) ; In re Smith; Henderson-Roe v. Hitchins (1889) 42 Ch D 302 ; and to the observations of Lord Haldane L.C. in Attenborough & Son v. Solomon (1913) AC 76, at p 83 where his Lordship said:

"The office of executor remains, with its powers attached,
but the property which he had originally in the chattels that
devolved upon him, and over which these powers extended,
does not necessarily remain. So soon as he has assented, and
this he may do informally and the assent may be inferred
from his conduct, the dispositions of the will become
operative, and then the beneficiaries have vested in them the
property in those chattels. The transfer is made not by the
mere force of the assent of the executor, but by virtue of the
dispositions of the will which have become operative because
of this assent." (at p320)

26. In essence this passage states that so soon as the executor by use of his executorial powers has completed his tasks and assented to the benefactions, the testator's will begins to operate and the powers of a trustee are activated in relation to the property then subject to the terms of the will. Granted that this is settled law in relation to powers and to the vesting of the interests of the beneficiaries under the will, its relevance to the construction of testator's family maintenance legislation is not apparent. The dominant purpose of this legislation is to enable the court, in a sense, to prevent the operation of the will according to its terms in an appropriate case. It is because the will is operating unduly or unjustly in relation to the testator's family that the court is empowered to order maintenance, its order operating as a codicil to change the terms of the will and have them operate in a way different to that expressed by the testator. In relation to the exercise of executorial powers, it may be conceded that upon completion of the executorial duties and with the assent of the executor, the property devolving by the grant of probate on the executor has ceased for those purposes to be the estate of the testator. It has become the property of those to whom it is destined by the will of the testator. But, in our opinion, the Act in using the expression "out of the estate of the testator" is not concerned with these settled doctrines. The words are used to indicate both the financial limits to which the court may go in making provision for those having unsatisfied claims on the testator and the source from which any provision so made shall be satisfied. It is, as we have said, that which the testator had to dispose of which is relevantly his estate. The court's power to make an order operative as a codicil extends to all that property, notwithstanding that in the case of an application made within the statutory twelvemonth it has been physically handed over or transferred to the intended beneficiary or beneficiaries. Of course, whether a court should disturb a distribution rests in the court's discretion, influenced no doubt by all the circumstances of the particular case. As indicated, the situation is different in the case of an application made out of time. (at p321)

27. We do not understand why in Public Trustee v. Kidd (1931) NZLR 1 the court could not have made some provision out of the amount set aside to satisfy the annuity, if it thought that rather than an annuity a capital sum was presently required by the daughter's situation. For reasons already given the fact that the money was technically held on trust on the terms of the will did not preclude the court from altering those very terms by an order operating as a codicil. The testator could by codicil have done so; and the order would operate as if he had done so. (at p321)

28. In In re Donohue, deceased; Donohue v. Public Trustee (1933) NZLR 477 , an application for an extension of time to make an application under the Family Protection Act, 1908-1921 (N.Z.) was dismissed on the ground that no estate of the testator remained at the date of the application. One quarter of the estate had been paid over to beneficiaries and the remaining three-fourths was held on trust for infant beneficiaries under the will of the testator. It was held that there had been a final distribution of the entire estate. The Full Court affirmed Public Trustee v. Kidd (1931) NZLR 1 without giving reasons additional to those advanced by Adams J. The view of the meaning of the expression "the estate of the testator" which we favour was put in argument by counsel for the applicant. However, nothing is said of it in the Full Court's judgment except inferentially by the acceptance of the reasons of Adams J. (at p321)

29. In in re Perry, deceased; Smith v. Public Trustee (1950) NZLR 530, at p 531 Stanton J., bound by the last-mentioned case, said that it was "too late to contend that 'final distribution' in s. 33 means payment over to the beneficiaries ...". Not unnaturally, there was no further examination of the decision in Public Trustee v. Kidd (1931) NZLR 1 . (at p321)

30. In In re Lerwill, deceased; Lankshear v. Public Trustee (1955) NZLR 858 , within a year of the grant of probate the whole estate had been paid over or transferred to the applicant as beneficiary under the will. Barrowclough C.J. felt bound by In re Donohue, deceased; Donohue v. Public Trustee (1933) NZLR 477 to hold that there was no "estate of the testator" out of which provision could be made. His Honour seems, rightly as we think, to have had reservations as to the earlier decisions but felt bound to apply them. (at p322)

31. In Brown v. Holt (1961) VR 435 the Victorian Supreme Court (Pape J.) had before it an application for an extension of time for making an application for an order for maintenance out of an estate. Section 99 of the Administration and Probate Act 1958 (Vict.) required the application for extension of time to be made before the final distribution of the estate. The real estate which the testator had left had been formally transferred to the beneficiary entitled to it under the will. But his Honour, though willing to follow the New Zealand cases to which we have referred, was not prepared to hold that all executorial duties had been completed. An argument that the transfer of the real estate made before all debts were paid was void was not accepted. Accordingly, he found he had jurisdiction but declined to make an order because of the smallness of the assets left in the estate. In this case, therefore, there was no examination of the reasons in Public Trustee v. Kidd (1931) NZLR 1 . (at p322)

32. In Re Pratt, deceased (1963) 80 WN (NSW) 1416 , McLelland C.J. in Eq. reviewed the authorities as they then stood. But he held that final distribution of the estate had not been made and made an order extending time within s. 5 (2A). The real estate left by the testator was treated as being held by the Public Trustee on the trusts of the will. But as the terms of the will required the land to be realised and the proceeds equally divided between named beneficiaries, his Honour held that final distribution had not been made. (at p322)

33. Though his Honour did not specifically express his view as to the correctness of the earlier cases, his reasons for extending time seem necessarily to involve a rejection of the view that an estate is relevantly distributed when executorial duties are complete. His Honour appears to have taken the view that physical distribution was required if jurisdiction to extend time is to be denied. (at p322)

34. In Re Donkin, deceased; Riechelmann v. Donkin (1966) Qd R 96 , an appeal against the making of an order for extension of time was allowed on the ground that at the time when the application was made there was no estate of the testator. It was not seriously contested before the court (1) that an order under the Testator's Family Maintenance Acts, 1914 to 1952 (Q.) may only be made out of the estate of the testator and (2) that when executors who are also trustees have completed their executorship and hold the property remaining vested in them as trustees for the beneficiaries, the property so vested is no longer part of the estate of the testator. Accordingly, there was no examination of the basis on which these conclusions were put. However, the court found the propositions correct, relying on Public Trustee v. Kidd (1931) NZLR 1 and the later New Zealand cases. The reasoning of Adams J. was accepted as correct. (at p323)

35. In Re McPhail, deceased (1971) VR 534 , the Victorian Supreme Court (Gowans J.) had before it a case of an administrator who had not completed his duties as administrator. It was held that the assets had not become vested in the next-of-kin: therefore, there had been no final distribution of the estate precluding the making of an order extending time. However, his Honour was prepared to adopt the various decisions (other than Re Pratt, deceased (1963) 80 WN (NSW) 1416 ), in particular the decision of the Supreme Court of Queensland. (at p323)

36. The most recent case is an unreported decision of the Supreme Court of New South Wales (Mahoney J.) Re Keys, deceased, and the Testator's Family Maintenance Act (6th June 1974). (Keys' Case). An order had been made extending time for making an application under s. 3 of the Act. The testator's estate consisted of a suburban house, a wrist watch, less than $2,000 in cash and shares valued at $150. The applicant was the widow of the testator living on a social services pension and about $14 per week from the letting of part of the testator's house in which she lived. All debts and testamentary expenses had been paid before the application was made. The realty had been transmitted into the name of the executors, subject to a Registrar-General's caveat. Jurisdiction to make an order was challenged on the ground that the estate had been distributed. (at p323)

37. The executors of the will were not specifically appointed trustees. The whole estate was bequeathed to the widow for life with remainder to be equally divided between the testator's son and two daughters. His Honour thought that the realty was still held as an asset of the estate. But, in considering the submissions based on the New Zealand cases, he said:

"The question to be determined is, in the final analysis,
what is the meaning of the words 'out of the estate of the
testator' in s. 3 (1) of the present Act and I am inclined to
think that, having regard to the nature of the legislation, this
is not to be decided by reference merely to the question
whether the assets have ceased to be held by the executors as
such or whether, having regard to the state of
administration, the executors have yet some or all of the ordinary
powers of executors. Any order which is made under the
present legislation operates as a codicil to the will: see s. 4 (1);
so as in effect to specify who are the persons to whom the
estate is to be distributed after the completion of all other
executorial duties. It does appear to me incongruous that an
order which does not affect the course of administration until
all of the executorial duties, except distribution of the estate,
have been completed should not be able to be made because
the administration of the estate has been carried up to but
not beyond the stage of distribution."

His Honour concluded he had jurisdiction and made an order. (at p324)

38. It seems to us that in all the cases, except Keys' Case, insufficient attention has been given to the basic question of the construction of the words of the statute in the context in which they appear, including the evident purpose and policy of the statute. What is more, the cases do not contain any examination of the consequences which flow from an adoption of the views there expressed. We agree with the passage from Keys' Case to which we have referred. It is, in our opinion, incongruous to deny jurisdiction so soon as executorial duties are complete. To import into the construction of this legislation the technical considerations applicable to the determination of a personal representative's powers is, in our opinion, an unwarranted development because it involves a failure to give due weight to the purpose of the legislation and it results in a frustration, rather than a facilitation, of that purpose. (at p324)

39. Accordingly, there was, in our opinion, jurisdiction in this case to extend the time for making an application under s. 3 (1A). The learned judge expressed the view, with which we agree, that the appellant's entitlement on intestacy did not constitute adequate provision for even proper maintenance. He went on to say that, had he been free to do so, he would have ordered that she receive a life estate in the remaining asset in the estate with power in the respondent to sell the cottage and purchase other suitable accommodation. In this respect we are unable to agree that such an order would have constituted adequate provision for her maintenance. Her claim upon the estate is paramount to that of her sons. She was in financial need at the date of the deceased's death; that need is still considerable and is likely to increase in the future. The asset which remains is not of great value and we think that nothing less than an absolute interest in the property would constitute adequate provision for the appellant. She may then realize its value and obtain for herself some other abode within her financial competence to maintain. (at p325)

40. In the result we would allow the appeal, extend the time and order that the entire interest in the real estate be vested in the appellant. (at p325)

ORDER

Appeal allowed.

Order of the Supreme Court of New South Wales set aside and in lieu thereof order: (a) that the time for making an application by the appellant under s. 5 of the Testator's Family Maintenance and Guardianship of Infants Act, 1916 (N.S.W.), as amended be extended until and including 13th July 1973; (b) that the respondent do all things necessary to vest the entire interest in the trust property, namely that portion of land contained in Certificate of Title Vol. 3280 Fol. 68, in the appellant.