Singer v Berghouse establishes the two-stage approach which the Court should take in assessing a family provision claim. However, Singer v Berghouse was decided with regard to the Family Provisions Act 1982 (NSW) and its applicability to the current NSW Legislation, the Succession Act, has been questioned.

Singer v Berghouse was an appeal to the High Court following the dismissal of the appellant's family provision claim, both at first instance and on appeal. The appellant sought an order for family provision from her deceased husband's estate under the Family Provision Act 1982 (NSW).

The Facts

Singer, was the widow of the deceased. The deceased's will provided that the appellant was entitled to the proceeds of any property acquired after their marriage; however, the proceeds of any property acquired prior to the marriage was to pass to the deceased's son. In this, the will was intended to give effect to an ante-nuptial agreement entered into by the parties, whereby both parties agreed not to make any claim against the other's estate and expressed a desire for their own children to inherit their respect estates.

At the time of the deceased's death, he and the appellant had been married for 11 months and had not yet acquired any additional property. Following the deceased's death, Singer had suffered from poor health and had a limited earning capacity, in part because she gave up her job in New York to follow the deceased to Sydney. However, Singer retained US property and was entitled to a pension, while the deceased's son had proven unsuccessful in business and at the time of the deceased's death he had no real assets of any value.

The Decision

The majority of the High Court concluded that, although the ante-nuptial agreement did not remove the appellant's right to make a claim under the Act, Singer had failed to show that she had been left without proper provision. In this it was noted that both parties had had comparable assets and Singer had not presented any real evidence of her present income, outgoings, intentions or needs for the future; thus, to make a provision for her would be to act on nothing but speculation.

The Two Stages

In reaching their decision the High Court held that the Family Provision Act 1982 (NSW) dictated a two-stage approach, which the Court should take in making their determination.

  1. The Court must determine whether 'adequate' provision has been made for the applicant. This inquiry requires an assessment of the provision with regard to the level of maintenance required by the appellant in light of the relevant circumstances. The first stage is a question of objective fact; however, it has an evaluative character requiring the Court to make value judgements about what is 'proper' or 'adequate'.
  2. Where the first question is determined in favour of the appellant, the Court should then consider what provision should be made. In this, the Court will also have regard to the relevant circumstances of the case. The question here involves the exercise of judicial discretion and the Court may make or refuse to make an order irrespective of their finding on the first question.

Andrew v Andrew questioned the applicability of the two-stage approach under the Succession Act 2006 (NSW). However, as the judges failed to reach a consensus on the matter the two-stage approach remains good law in NSW.

The Facts

The appellant was one of the deceased's five children. Under the will, the appellant was to receive a $10,000 legacy while the remainder would be divided between her four siblings. The appellant and the deceased had been estranged for 35 years. Although, the reason for the estrangement was not apparent, it appeared to be largely self-imposed by the appellant. Consequently, the nominal provision left for the appellant was justified by the deceased, on the basis that the appellant had 'not acted as a daughter should in our lifetime'.

At the time of the deceased's death, the appellant was in difficult financial circumstances, with no real assets and responsibilities for the care of a 10-year old foster child. The appellant's circumstances were significantly less secure than those of her siblings.

The Decision

The Court determined that it was impermissible to form a rule which recognised the rights of a testator to make no provision for an adult child on the basis that love and support had been withheld by that child. Accordingly, the Court ordered that, given the applicant's poor financial circumstances, her caring responsibilities and the comparatively stable positions of her siblings, a $60,000 provision should be made in favour of the applicant.

The Two Stages

In respect of the applicability of the two-stage approach the conclusions reached by each of the judges were as follows:

Basten JA

Justice Baston questioned the two-stage approach and noted that the Succession Act differed from the previous Family Provision Act in several respects.

  1. The Act widens the Court's discretion and changes the test from "inadequate" to "not adequate".
  2. The Act specifies that the list of considerations contained in section 60 are to be taken into account in determining both whether to make a provision and what provision; thus, removing the structural basis for a two-stage approach.
  3. The list of considerations is expanded in section 60 which reflects the current standards and influences the operation of the Act.

Given this the two stages are effectively combined and the question before the Court is: "what, taking all relevant factors into account, would have been adequate provision for the applicant".

Barrett JA

Justice Barrett considered that the structure of the Succession Act warranted continued adherence to the two-stage approach. Specifically, section 59(1)(c) requires the Court to be satisfied that adequate provision had not been made, while section 59(2) indicates that once satisfied of this the Court may make adequate provision.

Thus, although, the Succession Act is different to the Family Provision Act there is no new object or purpose in the Act which would suggest a different approach is required.

Allsop P

President Allsop agreed that the Succession Act dictated a subtly different task than the Family Provision Act; however, he concluded that whether or not a two-stage approach was to be applied was an "analytical question of little consequence".

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