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In the Matter of the Will and Estate of Late Alan Leslie Joubert [1948] PGSC 1; SC28 (15 October 1948)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

Judgment No. 28

In the matter of the Testator's Family Maintenance Ordinance 1930.

In the matter of the Will and Estate of ALAN LESLIE JOUBERT late of WAU in the Mandated Territory of New Guinea. Gold miner deceased.

APPLICATION BY WIDOW FOR FURTHER PROVISION FOR MAINTENANCE UNDER THE TESTATOR'S FAMILY MAINTENANCE ORDINANCE 1930.

Phillips J
15/10/48

JUDGMENT

This is an application under the Testator's Family Maintenance Ordinance 1930 of the Territory of New Guinea. The applicant is KATHLEEN THERESA JOUBERT and she is the widow of ALAN LESLIE JOUBERT who died on 20th September, 1945, leaving a Will dated 18th May, 1945 by which left her a one a one-third share of his residuary estate. She now seeks an order from the Court making such further provision for her out of the estate of the deceased as to this Court seems proper. Though the applicant's summons was dated 25th November, 1946, and was returnable on 16th December, 1946, it was adjourned by consent until 7th November, 1947: but when it came on for hearing on the 7th November, 1947, it appeared that service of the summons as required by S. 4(2) of the Ordinance had not been affected and the hearing was adjourned to enable such service to be effected. The summons again came on for hearing on 11th October, 1948, on which date I reserved my decision.

As this is the first application under the Testator's Family Maintenance Ordinance to come before the Supreme Court of the Territory of Papua New Guinea, it seems to me desirable that, before considering the facts of the case, I should refer to the relevant provisions of the Ordinance and to the principles in accordance with which those provisions should be applied.

The Testator's Family Maintenance Ordinance 1930 is a piece of remedial legislation and must be construed as such. As the High Court of Australia said in respect of a similar Ordinance of the Northern Territory, and in Homes v. Permanent Trustee Co. of N.S.W. Ltd. (1931-2) 47 CLR, p.113, at p.119:- "This kind of legislation is not novel. It prevails within the Commonwealth and New Zealand. In the days of Henry II the power of disposing did not extend to all a man's property. That is the general law of Scotland at the present day. Similar provisions exist in Latin countries... The Ordinance brings the Territory into line with the States of the Commonwealth and is remedial in character and must be so construed as to give the most complete remedy which the phraseology will permit. (Gover's Case[1875] UKLawRpCh 165; , 1875 1 Ch.D. 182, at p. 198: Bull v. Attorney-General for N.S.W.[1913] HCA 60; , 1913, 17 CLR, 370, at p. 384). Nor ought a Court of Law to be alert in placing a restricted construction upon the language of a remedial Act: Samuel v. Newbold, [1906] UKLawRpAC 28; 1906 AC 461, at p.467; Wilson v. Moses, [1909] HCA 7; 1909, 8 CLR 146 at p.165)." In another case, one relating to the Western Australian Testator's Family Maintenance Act 1939 - 1944, the High Court said:- "In one sense the Testator's Family Maintenance Act is restrictive or derogates from private right; for it derogates from the absolute power of the testator to dispose of his property by Will. In another sense it is remedial; for it empowers the Court to remedy the injustice which a capricious or unfair use of the testamentary power may inflict upon those who may be considered to have moral claims upon the past mortem depositions of the testator:" (See Sampson v. Sampson and Perpetual Executors Trustees and Agency Co. (W.A.) Ltd: [1945] HCA 20; 1945, 70 CLR 576, at p. 583).

Section 7 of the Testator's Family Maintenance Ordinance of New Guinea provides that applications such as this one "shall not be heard by the Court unless the application is made within nine months after the date of the grant of probate of the Will, or letters of administration with the Will annexed, of the testator." In this case, probate of the Will of the Testator was granted in New South Wales on 14th December, 1945, and was not resealed in this Territory until 21st August, 1946: and the present application was made (as already stated) by summons taken out on 23rd November, 1946, returnable on 16th December, 1946. The application was therefore made, more than nine months after the grant of probate in New South Wales, but less than nine months after that grant was resealed in the Territory. The question arises, whether it is in time. An exactly similar question arose in North Australia (or Northern Territory) years ago and the Territorial Court ruled that the application was out of time and that the Court therefore had no jurisdiction. But that ruling was overruled, on appeal, by the High Court of Australia, on the ground that by virtue of Section 26 of the Administration and Probate Act 1891 (S.A.), which continued to be in force in North Australia, the resealing of a probate was as effective for the purpose of the Testator's Family Maintenance Ordinance, or for any other purpose, as if it was an original grant: therefore the Supreme Court of North Australia had jurisdiction to hear the application: (See Holmes v. Permanent Trustees, above cited). As Section 87 of the Administration and Probate Ordinance 1937-1940 of New Guinea similarly provides that probate and letters of administration granted by courts of competent jurisdiction in any portion of His Majesty's Dominions and resealed in the Territory "Shall have the like force and effect and the same operation in the Territory....as if (they) had originally been granted by the Supreme Court" of the Territory, the High Court's decision in Holmes v. Permanent Trustee is exactly in point and is conclusive in this case. That is to say, the present application is in time. In passing I may say that the date on which an application of this kind is "made" is not the date on which it is returnable or is brought on for hearing: it is sufficient if it is filled and served on or notified to the executors within the prescribed time: (See Re J. Beckett deceased, 48 W.N.; NSW 83: and V, A.L.J. 126).

The section of our Testator's Family Maintenance Ordinance especially relevant to this application is section 3 – particularly subsection (1) of that section, which reads:-

"If any person (in this Ordinance called the testator') disposes of or has disposed of his property by Will in such a manner that the wife, husband or children of the testator, or any of them, are left without proper maintenance, education or advancement in life, the Court may at its discretion, on application by or on behalf of the wife, husband or children, or any of them, order that such provision as to the Court seems proper having regard to all the circumstances of the case shall be made out of the estate of the testator for the maintenance, education and advancement of the wife, husband or children, or any of them."

Let us examine this provision.

In the opening words:-"If any person...disposes of or has disposed of his property by Will," etc., may not be given an unlimited or unrestricted interpretation, because the jurisdiction of this Court is not unlimited. Thus, this Court has no jurisdiction to make an order under the sub-section just quoted when the testator, at the time of his death, was not domiciled or had no real property in New Guinea – even though he had personal property in the Territory: (Pain v. Hall [1919] NSWStRp 19; 19 S.R. (N.S.W.) 105). On the other hand, if the testator, at the date of his death, was domiciled in New Guinea and had assets there and elsewhere, this Court has jurisdiction, in a proper case, to make such an order over his property in New Guinea and over his personal estate everywhere, but not over real property situated outside New Guinea: (Re: Sellar, 1925, S.R. (N.S.W.) 540; Re Osborne, 1928 Q.S.R. 129). In the present case, the affidavits established, in my opinion, that the testator had, at the time of his death a New Guinea domicil; and, at the hearing, learned counsel for the applicant agreed that this was so.

The sub-section refers to the case in which a testator wills or has willed his or her property in such a way that the wife, husband or children of the testator, or any of them, "are left" without proper maintenance, etc.. The question arises, to what point of time do the words "are left" relate:- to the date of the death of the testator, or to the date of the hearing of the application?. The cases on this point at first sight seem conflicting; but I think that the conflict is more apparent than real, because of the differentiation in the wording of the relevant provision in the statutory law of different places. In some Australian States the provision runs, that where dependants of a testator "upon his death"... "are left" without proper maintenance, etc; whereas in New South Wales and in New Guinea, for instance, the words "upon his death" do not appear in the testator's family maintenance legislation. In the Testator's Family Maintenance Acts 1916, (12 Tas. L.R. 11 cited in XX Aust. Digest, cols. 55 &56) the Full Court of the Supreme Court of that State, dealing with a section that includes the words "upon his death", looked at the circumstances prevailing at the date of the death of the testator and refused to make an order in favour of a son who was earning at the date but who became incapacitated subsequently and before the hearing. Contrast the New South Wales case of Re Forsaith [1926] NSWStRp 68; (1926, 26 S.R., N.S.W., 613- cited in XX Aust. Digest col. 55), where Harvey, C.J. in Equity, dealing with a section in which the words "upon (the testator's) death" did not appear, held that the period of time which is to be considered, when determining whether the applicant has been left without adequate provision, is the date on which the Court is dealing with the matter, and not the date of the testator's death. Compare the South Australian case of Re Gerloff, [1941] SAStRp 29; (1941, S.A.S.R. 156, cited in the 1942 Supplement to Aust. Digest at col.447) where it was held:- "Semble:- the moral duty of a testator to make provision for his family should be ascertained according to the circumstances existing when the Court is dealing with the matter".

If the Court's consideration of such questions were restricted to a consideration of the position at the date of the death of the testator, the Court could make no order under the subsection directing, for example, that provision be made out of a testator's estate for a post-humous child of his whom he had left unprovided for. In New Zealand, however, the Court has exercised its discretionary power to distribute estate with other children: see Public Trustee v. Brown, 34 NZLR 951, cited in Graham's "The Practice of the Supreme Court of Queensland," Part 11, at p. 198.

It seems reasonable to assure that the framers of Section 3 of the New Guinea Testator's Family Maintenance Ordinance 1930 were aware that in some Australian States the corresponding section contained the words "upon his death" (i.e. upon the testator's death); that in New South Wales, on the other hand, those words did not appear in the corresponding section; and that it had been decided in the New South Wales case of Re Forsaith, in regard to the New South Wales section that the time to be looked at was not that of the testator's death but that of the hearing of the application. It also seems to me reasonable to assume that the words "upon his death" were deliberately omitted from Section 3(1) of the New Guinea Ordinance, and that the intention of the legislature was that the Court should not be restricted, when dealing with applications under the Ordinance for further provision for maintenance, to a consideration only of the circumstances obtaining at the date of the death of the testator. Some support of this view seems to me to be given by section 11 and 15 of the Ordinance, which empowers the Court to rescind or vary orders it has made under the Ordinance. As at present advised, therefore, I am of the opinion that the Court, when dealing with an application such as the present one, is to look at all the circumstances, not merely those existing at the testator's death, but those existing at the time of the hearing of the application.

It is clear from section 3(1) of our ordinance that the Court's power under that subsection arises only where, an application by or for the wife, husband or children of a testator, it is established that the applicant or applicants are left by the testator's Will "without proper maintenance, education or advancement in life". When this has been established, the Court may, at its discretion, order such provision as to it seems proper, having regard to all the circumstances of the case, to be made out of the testator's estate. The fact that the Court is empowered to use its discretion does not mean that it may act capriciously or arbitrarily: the discretion given to it is one that must be exercised judicially, on principle, and on reason.

The phrase in the sub-section that gives the most difficulty in practice is:- "proper maintenance, education and advancement in life".

There is no particular difficulty about what is "maintenance", about what is "education", or about what is "advancement of life"; (and in the present application the applicant is an adult well-established in her nursing profession, so we are only concerned with her "maintenance".) But what is "proper" maintenance?: (and note that the word used is "proper", not "adequate"). Obviously, the answer to that question must depend on the facts and circumstances of each particular case. But certain broad principles relating to matters which may be relevant to a Court's consideration of what is "proper" maintenance have been laid down in the cases. Without attempting to give an exhaustive list of those principles, I propose to refer to some of them.

A leading case on the subject is Basch v. Perpetual Trustee Co. Ltd., (1938, A.C., p 463) – an appeal to the Privy Council from the Supreme Court of New South Wales. In that case it was said (at p. 476 et seq.) :- "The first thing to be noticed is that the powers given to the Court only arise when any of the persons mentioned" (in the subsection) "is left without adequate provision for his or her proper maintenance ...... The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance in a scale that is 'proper' in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his 'adequate' maintenance. Nevertheless such sum cannot be described as not providing for his 'proper' maintenance, taking into consideration 'all the circumstances of the case' as the subsection requires to be done. In the next place, it is to be observed that, when the condition precedent to the exercise of the powers given by the sub-section is shown to be fulfilled these powers extend to making such provision as the Court thinks fit....for proper maintenance. The task thus imposed upon the Court is obviously one of great difficulty. Upon what principles is the Court to act in delivering what constitutes proper maintenance?. This is a question that has been discussed in several cases to which their Lordships' attention has been directed.... Of the cases cited their Lordships particularly desire to refer to In re Allardice, Allardice v. Allardice (1910, 29 N.Z.L.R. 959), a decision of the Court of Appeal of New Zealand that ultimately came before this Board. In that case Stout C.J. stated the principles to be followed by the Court in administering section 33(1) of the Family Protection Act 1908. They could, he said, be summarized as follows: (1) That the Act is something more than a statute to extend the provisions in the Destitute Persons Act; (2) that the Act is not a statute to empower the Court to make a new will for a Testator; (3) that the Act allows the Court to alter a testator's disposition of his property only so far as it is necessary to provide for the proper maintenance of wife, husband or children where adequate provision has not been made for this purpose; (4) that in the case of a widow the Court will make more ample provision than in the case of children, if the children are physically and mentally able to maintain and support themselves. Later on he said: 'The whole circumstances have to be considered. Even in many cases which the Court comes to a decision that the Will is most unjust from a moral point of view, that is not enough to make the court alter the testator's disposition of his property. The first enquiry in every case must be, what is the need of maintenance and support; and the second, what property has the testator left?'

With these observations of the Chief Justice their Lordships are in agreement. The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration. So, too, in the case of children, a material consideration is their age. If a son is of mature, or nearly mature, age, his needs both for the present and the future can be estimated without much difficulty. In the case, however, of a son of tender age, although his immediate needs can be readily ascertained, it is extraordinarily difficult even to guess what his needs may be in the future. Where, therefore, the testator's estate is a large one the Court will be justified in such a case in making provision to meet contingencies that might have to be disregarded where the estate is small. 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 exiting 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 agreed 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 wise and just, rather than a fond and foolish husband or father. This no doubt is what the learned judge meant by just, but not a loving, father. As was truly said by Salnod J. in In re Allen (deceased) Allen v. Manchester, [1921] NZGazLawRp 155; (1922, N.Z.L.R. 218, 220):- 'The Act is....designed to enforce the moral obligations of a testator to use his testamentary powers for the purpose of making proper and adequate'" (in the New Guinea Ordinance the words is "proper") " '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 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'."

Two South Australian decision may here be referred to. In the Testator's Family Maintenance Act 1918 of that state, the phrase – "left without adequate provision for his proper maintenance" is used. The judgment of the Full Court of South Australia in the case of In re Richardson. [1920] SALawRp 9; (1920, S.A.L.R. 24) is cited in 11 A.L.J., p.206 as establishing these propositions:-"The important question is what is meant by the word 'proper'; and propriety should be judged according to the standard of the average just man with conventional views of fairness. In the ordinary case of, an application by a widow, justice demands no more and (if the testator's estate permits it) no less, than that she should receive a provision which will be sufficient to maintain her, until her death or remarriage, in that style of living to which she was accustomed during her husband's lifetime. Such a provision will not, as a rule, be rendered inadequate merely because the testator's estate is large enough to make a more generous provision practicable". In Vol. XI A.L.J., at p.25, it is noted that in another South Australian case, In re Harris (13th November, 1936), Cleland, J. expressed his views of the Court's discretionary jurisdiction (in somewhat picturesque language) as follows:-"It is the duty of the Court in obedience to the Act to provide 'proper' maintenance' no more and no less – whether it be more or less than what the parties themselves thought proper.....What is proper maintenance in any given case depends on all the circumstances and it is difficult to relegate any circumstances to complete irrelegancy. 'Proper maintenance' is (if circumstances permit) something more than a provision to keep the wolf from the door – it should at least be sufficient to keep the wolf from pattering round the house or lurking in some outhouse in the back yard – it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail".

In the case of a widow's application, the general rule is (as we have seen) that the Court will make more ample provision than in the case of children – if the children are physically and mentally able to maintain and support themselves: (Busch's case, citing Allardice's case). In some cases, the phrase "the paramount right of the widow" has been used: but the danger in such a phrase has been pointed out by Long Innes J., in Re F.W. Growe deceased [1935] NSWStRp 58; (52 W.N. N.S.W.) 187) where he limited the doctrine expressed in that maxim to the statement that, as a general rule, and other things being equal, the right of the widow is paramount. His view was affirmed by the Full Court of the Supreme Court of New South Wales in the case of In the Will of F.B. Gilbert [1946] NSWStRp 24; (46 S.R. (N.S.W.) 318).

When the applicant is a widow who has been living apart from her husband testator, whether under a separation agreement or not, the question whether his will has made proper provision for her maintenance may be a difficult one: all the circumstances must be looked at and the decision depends on the facts of each particular case. Where there has been a separation agreement with a provision for the payment of a regular allowance to the wife, questions have arisen as to whether, or to what extent, the amount of that allowance (to which the wife had agreed) should be regarded as being a proper provision for her maintenance: see Cook v. Webb (1918), 37 N.Z.L.R. 664), In re Charles Smith (deceased) a South Australian case of 5th April, 1928, and In re Phillips (deceased) 46 W.N., N.S.W.), which cases are cited in Vol. II A.L.J. at pages 206 and 394. But it is now settled that although the amount of the allowance provided for the wife in a separation agreement is a factor to be considered, it is not necessarily decisive as to whether that amount constitutes a proper provision for her maintenance: see Sampson v. Sampson and Perpetual Trustees and Agency Co. (W.A.) Ltd.[1945] HCA 20; , (1945, 70 C.L.R. 576). In that case the testator, who left a gross estate of over a quarter of a million pounds, directed by his will and codicil that his trustees should continue the payment to his wife of a weekly sum of ₤9 (the amount that she has been receiving pursuant to a separation deed prior to his death): he hade no other testamentary provision for her. On her application, Northmore C.J., considered that she had been left without adequate provision for her proper maintenance and he increased the weekly payment from£9 to £20 and ordered the payment to her of a lump sum as well. An appeal to the High Court against his decision was dismissed, and the High Court observed (at p. 584); - "In considering whether the provision made for the widow was adequate, all the circumstances must be taken into account;... It is no doubt true that the circumstances that the testator and his wife had lived so long apart and that by agreement between them her maintenance had been fixed at £9 a week in 1940, formed part of the material circumstances. On the other hand, the disparity between this provision and the size of his estate is another material circumstance. The reasons which the widow gives for accepting £9 a week and the evidence of the testator's persistent and inflexible attitude towards the allowance for her maintenance cannot be left out of consideration. An important matter too is the incidence of income tax upon her allowance under the deed of separation". (Here it should be said that income tax is a form of Governmental pecuniary mullet that has not yet been levied in the Territory of New Guinea).

Another circumstance that may be relevant in applications under the Testator's Family Maintenance Ordinance is the character or conduct of the applicant. Section 6 of the New Guinea Ordinance provides that the Court "may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, disentitles him to the benefit of any provision under that Ordinance". As to the conduct that may be held to debar an application from obtaining an order, the decision of the Full Court of the Supreme Court of New South Wales in In re the Will of F.B. Gilbert [1946] NSWStRp 24; (1946, 46 S.R. (N.S.W.) 318) (and noted in Vol. XX A.L.J. at p. 224) is instructive. In that case the net value of the testator's estate was £7,000. There were three adult children by testator's first wife, after whose death he had married again. His widow was dissatisfied with a legacy of £1,600 and applied for maintenance under the New South Wales Act. "In her affidavit she stated: (I am quoting from the note in the A.L.J.) "that she had no means of income other than this bequest but, on the hearing of application, she admitted owning a freehold cottage which yielded a rent of as much as £4/15/0 a week, and in addition she had almost £500 in several bank accounts. Despite these misrepresentations which amount in substance to perjury the Judge before whom the application came ordered that the applicant should receive the sum of £2/10/-" (a week "during widowhood in addition to the legacy bequeathed by the Will. The executors appealed against this order on the grounds that the applicant's perjury disentitled her to an order, that the order was too liberal, and that any order should be in the form of a lump sum and not periodical payments. The Full Court allowed the appeal by increasing the legacy from £1,600 to £2385 and deleting the provision for periodical payments." The Full Court had in mind that "the applicant had given up a pension of £2/10/- per week to marry the testator and he had promised in effect to make that up to her" and "the lump sum was awarded to avoid hardship to the other beneficiaries who would be prevented from enjoying the benefits conferred on them by the will if an order were made for periodical payments." Jordan C.J., in delivering judgment said that there was no substance in the contention that the applicant's perjury disentitled her to an order. The provision in the Act that the character or conduct of an applicant may be a bar to relief is directed at character or conduct relevant to the purpose of the Act, such as misconduct towards the testator or conduct which shows that the need for maintenance is due to the applicant's own default. Perjury, though a grave offence, does not result in an applicant forfeiting all rights under the Statute though, where it relates to the applicant's means, it would be relevant because the Court would then be justified in accepting the applicant's uncorroborated evidence with reservations." It may be added that an applicant's perjury or lack of frankness in such matters may mulct the applicant in costs: (See Re Burke, 1940, Q.W.N. 33). Although an applicant must show some moral claim on the bounty of the testator, it is not for an applicant to show that his or her conduct has been such as not to disentitle him or her to benefit in the estate of the testator: on the contrary, it is for the party opposing the application to satisfy the court that the applicant's conduct has been such as to disentitle the applicant to benefit in the estate and, if there is any doubt about this, the applicant should have the benefit of that doubt: see Re Osborne (1928, Q.S.R., 129) and especially In re Ruxton [1946] VicLawRp 8; (1946 V.L.R. 334, 1946 A.L.R. 413).

But even where there is no suggestion whatever that the character or conduct of an applicant is such as should disentitle him from benefiting from the estate of the testator, there may be circumstances in which the fact that the testator, left only so much to the applicant, or perhaps left nothing at all to the applicant, is insufficient to show that the testator failed in any moral duty to the applicant. For instance, the testator may, during his lifetime, have made advancements to the applicant of so ample a kind that it would be unjust, to others, for the applicant to seek further benefits from the deceased's estate. Again, the applicant may have ample property or income in his or her own right.

The age and health of applicants and their capacity to look after themselves are relevant, as was pointed out in Bosch's case (at pages 478 and 483). In the same case, (at p.479), "local conditions as to employment" were mentioned as "matters necessary to be borne in mind in adjudicating on questions of this class"; and in the same case also, (at p.483), the Privy Council referred to the possibility that the value of money and rates of interest might depreciate as a contingency to be taken into account.

Obviously, regard must be had to the estate of a testator its amount, and the way in which he has disposed of it (in whole or part) by will: (Bosch's case). It is true that any order made by the Court under the Testator's Family Maintenance Ordinance cannot extend beyond that part of a testator's estate (over which the Court has jurisdiction) which he has effectively disposed of by will, and that the Court's order may not touch such other part of the Estate as is distributable on a partial intestacy. But, although the Court has no jurisdiction under that Ordinance to alter the destination of such part of the estate of a testator as to which there is an intestacy, it must, when deciding whether to order that an applicant is to receive a benefit from that part of the testator's estate which is not intestate, consider what the applicant may be taking in the intestacy: (See In re Hood 1942 A.L.R. 224). Similarly, in my opinion, when a testator has disposed by will of estate in New Guinea and in Australia, if an applicant were to claim that the testator had not made proper provision for the applicant out of the New Guinea estate, the Court would be entitled to take into consideration a devise by the testator to the applicant of real property situated in Australia, though that realty is not within this Court's jurisdiction.

It is well-established that, in considering applications of this nature, the testator's station in life, as well as his means, and the applicant's accustomed mode of living during the lifetime of the testator, are circumstances to be taken into account.

There has been some difference of judicial opinion as to whether help given by an applicant to a testator in building up the testator's estate is a material circumstance. In a New Zealand case, Welsh v. Mulcock 1924, N.Z.G.L.R. p. 175), Herdman, J. considered it irrelevant. In Queensland, however, it has in a number of cases been considered relevant: see for instance In re McCreedy (1938) Q.S.R. 293). In Victoria, in the case In re Larner 1938 (not reported) Martin J., appears to have thought it a material circumstance. So does Lowe J., in another Victorian case, In re McElrey deceased (1940 A.L.R. 356). In that case, the testatrix had no property of her own when she married and the property she accumulated at her death was owing to contributions from her husband. Though he had been incapacitated by war and his resources had become scanty, she left him nothing in her will, but gave the bulk of her estate to the evangelist "Father" Divine, of America. In making an order in favour of the husband, Lowe, J. gave as one of his reasons, "the fact that it was by means of contributions made by him that she was enabled to amass the property which she left". The position seems to me to be, that assistance given by an applicant to a testator in building up the latter's estate is not an entirely irrelevant circumstance but that the question whether such aid is of such a kind and degree as to warrant an order in favour of the applicant is one that must depend upon the facts in the particular case.

In considering applications under the Testator's Family Maintenance Ordinance, the Court will also look at what have been called "competing moral claims on the bounty of the testator" and at the dispositions he may have made to persons other than the applicant. Here the Court may encounter problems of considerable complexity and difficulty, as, for example, where the testator has married twice and where there are children of either or both marriages. That is obvious enough. But it may also be observed that the other people who may have "competing moral claims", or to whom the testator may have made dispositions, may be people who may not themselves make applications to the Court under S. 3(1) of the Ordinance, because they do not fall within the classes of application mentioned in that sub-section: that is to say, they were not "the (wives, (husbands), or children of the testator". For instance, a testator, living apart from his lawful wife, may have contracted an irregular union with another woman and may also have had children by her. Many widows might consider, naturally enough, that the mistresses and any children of the mistresses of their husbands should have no moral claim upon the testamentary bounty of their husbands. Yet it has been held that they have some such claim. In the case of In re Joslin.Joslin v. Murch and Wiles (1941, 57 T.L.R., 293), the testator had left his wife and gone to live with another woman by whom he had two children: by his will he provided for his illegitimate children and their mother but left nothing to his wife. The net value of his estate was £375. The wife had some means but the illegitimate children and their mother would have been destitute but for the provision in the will. The wife applied for maintenance under the English Act. Farwell J. said:- "In the circumstances the husband was in a dilemma. No doubt he owed a duty to his wife...On the other hand, he was under a moral, if not a legal, obligation to provide for his two children, who were none the less his children because they were born out of wedlock, and for the woman who had borne them...But in such a case, if the estate is so small that it is not really practically possible for him to provide both for the wife and the other woman and the children, and if there is some provision already in existence for the wife, it is open to him to take the view that, in all the circumstances, his duty is to make what little provision he can for the woman and children...". The learned Judge, in the circumstances, declined to exercise the Court's discretion in favour of the wife. And, in the Victorian case of In re Ruxton, to which I have already referred, although the mistress of a testator who had made certain dispositions in her favour had alleged in an affidavit that the widow applicant had by her character and conduct disentitled herself to the relief she sought and although those allegations were considered not proved, Fullager J. though ordering additional provision for the widow, said:- "I do not think I should interfere with the gifts to (the mistress), who may herself be regarded as having some claim on the testator's bounty, and I shall order that the additional provision for the widow be paid out of residue".

The foregoing observations will serve to show that the Court, when exercising its discretionary powers under Section 3(1) of the Ordinance, has a task of considerable difficulty and delicacy – especially when it is remembered that the subsection gives the Court "no power to recast the testator's will or to redress inequalities or fancied injustice" beyond what may be necessary to remedy the testator's omission to make provision for the proper maintenance of an applicant. It is a mistake to think, as in some cases, applicant dependents of a testator appear to have thought, that the whole of the provision for the proper maintenance of a testator's dependent must come from his estate. This is not so, because if the dependant already has provision from whatever source, for his or her proper maintenance, there is no moral obligation on the testator, so far as the Testator's Family Maintenance Ordinance is concerned, to make further provision for the dependent, and he may dispose of his estate as he wishes even to complete strangers in blood.

I now have to apply the principles I have been discussing to the facts of this case.

In her affidavit of 17th November, 1947, the applicant states that she married the testator in Sydney on 17th July, 1929, she then being a nurse and 29 years of age and he a miner and 46 years of age. After some months in Australia, they came to Koranga in the Territory of New Guinea, where her husband had mining interest, and, except for occasional visits to Australia, lived there together until early 1937 (she says) when they went to Sydney. In 1929, she states, Koranga was only a mining settlement at which two Europeans and "several hundreds" of natives were employed and she was the only white woman for a year: Koranga lacked amenities and fresh food: the nearest "village", she states, was Salamaua, and the nearest town with amenities was Rabaul, 450 miles away. She also states that for the first seven years of their stay at Koranga, they lived in a native hut that was later converted into a two-roomed corrugated iron structure containing little furniture (and that of poor quality) and no modern conveniences: and that during that seven years, she did the housework and cooked for the Europeans at Koranga in a camp oven over an open fire and also "assisted with the control of the native labour employed at the mine and attended to all cases of sickness in the settlement which consisted of several hundred natives." She further says that "towards the end of (their) stay at Koranga", her husband sold his interest in the mine there to a company known as Koranga Gold luicing Limited, in which he became a large shareholder, director and general manager; and that during their last year at Koranga, the company built a comfortable house for them, but that they "only stayed in Koranga about eight months after it was built".

A somewhat different picture of conditions at Koranga is given in an affidavit sworn on 11th December, 1947, by Alan Lindley Fuller, who says therein that he first met the Jouberts "at Koranga near Wau" in 1930, visited their house twice a week until they left, - in 1936, he says, - and during that time he kept the testator's books. He says that the Jouberts, when he first met them, were residing in a house constructed of timber and iron and that it consisted of a lounge room, dining room, kitchen, shower room, store-room, and an attached outhouse: it had an area of approximately 65 feet by 40 feet, was safely floored and well furnished, and was (he says) "for the locality an outstanding building and.... far above the average". He also says that it was in 1932 that the Jouberts moved into the house constructed by the company and that the house was a comfortable one, well furnished and equipped. He remarks that all the furniture and furnishings were brought into Koranga by air at the expense of the deceased. He says that the native household staff at the Joubert's averaged five in number and that he never saw Mrs. Joubert do housework or cook: (but it is possible of course, that she may have screened such occupations from a visitor). He also says that she controlled no native labour except the domestic staff and – (I quote him here) – "that cases of sickness were dealt with either by the deceased or a medical orderly": (it will be noted that he does not say that "all" cases of sickness were dealt with by the deceased or a medical orderly and he does not say that the applicant attended to no cases of sickness). He says that the "climate of Koranga is temperate, since it is situated among mountains and is at an elevation of 2900 feet".

The Applicant replied to Mr. Fullar's affidavit in her affidavit of 12th June, 1948. In that affidavit she denies meeting Mr. Fuller until late 1931 or early 1932. She disputes his description of the corrugated iron house, and says that it consisted of two rooms only (one a bedroom and occupied by herself and her husband, the other a lounge that was also used for sleeping accommodation for a white employee of the mine) and that the building's overall measurement was only 20 feet by 20 feet. She also says its roof was not weather-proof and that most of the furniture was home-made and made of cases, etc.. As to the house later built by the Company for them, she says in this affidavit that it was not erected until 1934 (which is two years earlier than was suggested in her earlier affidavit) and that she only lived in it for five months (which is three months shorter than the period of occupation suggested in her earlier affidavit). In this affidavit, she also denies that the furniture and furnishing in this house were as good as Mr. Fuller has said they were, and she reiterates that she did all the cooking, and states that she had two domestic servants only. She also says: "prior to the Koranga mine being formed into a company I attended to all sick natives and issued all native rations". As to this, - in her earlier affidavit she had said that it was "towards the end of her stay at Koranga" (and according to her, this stay ended in early 1937), that the testator sold Koronga mine to the Company. Mr. Fuller clearly would put that sale much earlier, because he spoke of the house built by the company for the Jouberts as having been built in or about 1932. Alfred Christian Joubert, brother of and one of the executors of the deceased, has sworn in his affidavit of 23rd January, 1948, that the Company was formed by the testator on 21st December, 1931. If the date given by that executor is correct, and it would on the weight of the evidence seem to be correct, that would mean that Mrs. Joubert attended to the native sick and issued native rations from late 1929 to late 1931 – two years only, (not seven as was suggested in her earlier affidavit).

The applicant's recollection of dates would seem, from her own affidavits, to be not always consistent, but a faulty recollection of dates may happen to any of us – especially when there has been intervening distraction of a World War. As to another date, the date of her husband's leaving her, she is at variance with others. She puts it in her affidavit of 17th November, 1947, as being in early 1937, but the executor, A.C. Joubert has sworn it was February, 1936. The testator's solicitor, John Stenhouse Benecke, in his affidavit of 27th January, 1948, has also sworn that it was in February, 1936: he says that he acted for the testator in connexion with certain troubles that had arisen between the testator and the applicant and that in July, 1936, there were negotiations for a proposed deed of separation. It would appear that the applicant is a year out as to the date on which the testator left her.

The description respectively given by the applicant and by Mr. Fuller, in their affidavits about the Jouberts homes at Koranga and about the conditions there, are so contradictory as to the irreconcilable. It is notorious that conditions on a New Guinea minefield are apt to be difficult and primitive, especially at the beginning. It is common knowledge that the fields in or near the Bulele Valley (Wau, Koranga, Bulele, Eddie Creek etc.) are situated in land in mountainous country and that, before the war, they had to depend upon air transport for the supply of may necessaries. Strangely, though the applicant in her affidavits had mentioned Salamaua and Rabaul, she has said nothing at all about Wau, which, also a matter of common knowledge in New Guinea, is only 4 miles or so from Koranga and was a thriving up-to-date-township, with many amenities, for years before the war and before the date on which the applicant says she left Koronga. Nor has she mentioned the model settlement at Bulele, which was well-known to be almost self-contained township in itself, and one which took full shape possibly even before Wau, and was about six miles from Koranga.

It may not unfairly be said, I think, that the applicant, in her affidavit of 12th June, 1948, has modified or qualified some of the statements she had made in her affidavit of 17th November, 1947.

In that earlier affidavit, and continuing her narrative of events, she says, at paragraph 17:- "On our arrival in Sydney" (i.e. after she had left Koranga with her husband for the last time) "my husband took a lease of a flat at Point Piper for six months....While living in Sydney my husband maintained a reasonable high standard of living. Our apartment rents varied between £6/6/- and £12/12/- per week. My husband had informed me that our earlier trips to Sydney from Koranga cost him between £1200 and £1500 each trip". (Of what durations these trips were, is not stated). In para. 18, she continues: - "After we had been living at Point Piper for about one month, my husband left the flat one day and never returned....". I take it that her reference, in para. 17., to rentals to 6 to 12 guineas a week "when living in Sydney" referred to rentals paid during trips to Sydney from Koranga on holidays, or business, and the variations in the rentals may have been due to the exigencies of the moment.

In her affidavit, the applicant asserts that, after her husband left her; he "lived with" another woman whom he had "kept" at a Sydney flat while he and the applicant were living at Point Piper. From the affidavits of other deponents, it appears that that woman was a nurse, and that the testator, for some years before his death, had been under medical treatment and from time to time had had to go into Hospital. Mr. Fuller, in his affidavit, says:- "I had every opportunity of observing the relationship of deceased with the woman referred to...and say that the woman was a trained nurse and was caring for the deceased who was in bad health. At no time during my visits to deceased did I see or hear anything which might suggest any relationship between him and the woman other than that of employer and employee." Mr. Benecke, testator's solicitor, has stated in his affidavit that he acted for the deceased on the purchase of the property at Collaroy, which the deceased bought for his own use and "also for the purpose of making some provision after his death for his nurse, Ann Simpson Gilderoy, who had been able to give him expert attention necessitated by his medical treatment. In pursuance of this latter intention, the deceased executed a Deed of Settlement of the property on the 17^th September, 1941, under which as subsequently varied on the 3rd August, 1943, the deceased reserved the property to himself for life with a life estate to Ann Simpson Gilderoy, after his death, the property on the death of Ann Simpson Gilderoy to revert to his estate...". The deceased also bequeathed to Ann Simpson Gilderoy, in his will, 500 shares in the Company Gold & Power Ltd. It does not appear, from the evidence put before me, that the applicant instituted any divorce proceedings against her husband. On this material, I do not consider that I can rightly find that the applicant's suggestions as to the nature of the relationship between the husband and the other woman have been proved or established.

In her affidavit of 17^th November, 1947, the applicant states that, after her husband left her, negotiations took place between her solicitors and his; that she refused to consider a deed of separation; but that, "under pressure" from her solicitors, her husband agreed to pay her £40 a month for her maintenance, and that he did pay that monthly sum to her until February 1942, when it was reduced to £15 a month – which reduced sum was paid to her until within one month of his death. (Mr. White, learned counsel for the applicant, suggested, at the hearing of the summons, that the testator's agreement to pay £40 a month to his wife indicated that the testator's relationship with the "other woman" was not altogether innocent. This does not necessarily follow, however, for a number of reasons – some of which I have already mentioned. Continuing that affidavit, the applicant says, that after her husband left her, she resumed her profession of nursing with the Administration in New Guinea; that during the War she served with the Australian Army Nursing Service in New Guinea; and that she had "now returned" to her former position with the Civil Administration in New Guinea. She adds:- "I am at present receiving a salary of £25 per month, my accommodation and food being provided. My monthly expenses are very small as there is very little I can purchase. At present I am finding hospital work very tiring and I feel I will not be able to continue it much longer". (Mr. White, at the hearing said that it was not claimed that the applicant was in ill health).

Meanwhile, on 20th September 1945, the testator died. By will dated 18th May 1945 he made several specific bequests to persons other than the applicant and then left the whole of his residuary estate upon trust as to one third thereof to his brother, Alfred Christian Joubert (one of the executors). The applicant states that Alfred Christian Joubert is a middle aged man who for many years was well-established in Lismore as an accountant and who is now employed as an accountant and who is now employed as an accountant in the Commonwealth Sub-Treasury in Sydney; that his wife lived in Lismore; and that he has two children both of whom have grown up and neither of whom is dependent on him. (In passing, it may be mentioned that it would appear that the testator, in an earlier will dated 6th August, 1935, had left his whole estate as follows:- one third to his wife, one third to his brother Alfred Christian Joubert, and one third between two sisters of the testator. Yet when he made his final will, approximately ten years later, after the war had considerably decreased his income and after he had broken with his wife, he then gave her a one-third share of his residuary estate (which comprised the bulk of his total estate by far).

On the basis of probate figures and estimated deductions, the applicant says that the value of the testator's nett residuary estate would amount to £14,982/16/4, of which her one-third share would be £4,994/5/5. The executor, A.C. Joubert's calculations (on the similar basis) are, that the net value of the residuary estate, as at 29th December last, would be £14,132/11/9 of which the applicant's share would be £4,710/17/3. But it would appear from his affidavit that these are very conservative figures, for the following reasons. Part of that residuary estate consists of 7000 fully paid £1 shares in Koronga Gold Sluicing Limited. The shares of that Company are not registered in the Stock Exchange and are said to be tightly held by present shareholders; there have been no recent sales from which a market price for such shares could be arrived at. Hence a nominal value of £1 a share was set on them for probate purposes and in his own statement of the residual assets. But, as he states (exhibiting the Company's Balance Sheet of 30th June 1947 in support), each £1 share in the Company is represented by over £2 in nett tangible assets. It would therefore seem not unreasonable to suppose that the applicant's one-third interest in the 7000 shares in that Company, (2333 shares), is worth at least £2,333 more than has been assessed in her estimate of her share of the residuary estate and that her estimate should be increased by at least that amount. It would further appear, from the said executor's affidavit that the Company has affected a final settlement with the War Damage Commission, that rehabilitation at Koranga has made marked progress, that the mine has been in production for some months, and that a managerial staff of six and 251 indentured native labourers are already employed at Koranga. He says in that affidavit that, for the year ending 30th June 1939, 30th June 1940, and 30th June, 1941, were respectively, 10/-, £1/4/6, and £1/4/6 per £1 share: and that even for the ensuing period, cut short by the cessation, through enemy invasion, of mining operations in January 1942, a dividend of 4/- a share was paid, (clearly, a shareholding in that Company was in those days a very good proposition indeed). That executor's affidavit also refers to income received from the residuary estate of the testator, from since his death to 31st December, 1947, as amounting to a nett total of £1,277/5/0 (which total includes that sum of £705 received by way of last December's dividend from Koranga Gold Sluicing Limited). Of that £1,277/5/0 the applicant's share would be £425 – a further increase to her estimate. The Collaroy property, valued for probate purposes at £1,200, will, as already noted, ultimately fall into the residuary estate in which the applicant has a one-third interest.

The applicant has certain property and income of her own. After the testator left her, she returned to her nursing profession and her affidavits show that, as nurse with the Administration, her salary is now £25 per month with accommodation and food provided: but, of course, her earning power cannot go on for ever. She has disclosed, in her affidavit of 28th November 1947, that she then had the sum of £3,600 in cash to her credit in the Commonwealth Bank of Australia, and that that sum included £100 she had already saved when the testator left her, her savings since then, and amounts received by her in full as beneficiary in the estates of her late father and mother. (In an earlier affidavit of 5th November 1946, she has sworn that she had "recently succeeded" to one-fourth interest in her mother's estate and to a one-ninth interest in her father's, £489 respectively. Whether the words "recently succeeded" in her affidavit of 1946, referred to a date prior to that of the testator's death on 20th September 1945, and whether the testator became aware, before he died, that she had an interest in, or was likely to benefit from, the estates of her mother and father, are matters about which the applicant's affidavit say nothing.)

Now, it is contended for the applicant that she should, in all the circumstances, receive further provision for her maintenance out of the deceased's estate. Mr. White has submitted that the court should look, not at the position now, but at the position as at the date of the testator's death: but I think that principle, authority, and the Ordinance, are against that submission. He also submitted that the applicant, being a widow of the testator, has a paramount right to have provision for her proper maintenance made, "ahead of everything and anybody else", that "proper" maintenance is something more than "adequate" maintenance; that she endured rough conditions in the pioneering period at Koranga and that she rendered assistance to the testator there (such as nursing the sick native labour) which helped him to amass his estate; that her husband later left her for someone else; that the allowance of £40 per month he then agreed to pay her showed that he considered it to be the amount he ought to pay her for maintenance, and that her acceptance of the reduced allowance of £15 a month in 1942 (after the destruction at Koranga because of the Japanese invasion) is to be explained by her realisation that a substantial source of her husband's income had been cut off and by the fact that she was nursing again at that time; that her present earning capacity as a nurse cannot continue indefinitely and she is now 48 and (he suggests) approaching middle age; that the property she has in her own right is partly and largely due to her own self-denials and to saving from the testator's estate, it must be remembered that the purchasing power of money is not what to be taken into account; that proper maintenance in her case, she being the widow is the maintenance she was entitled to receive or expect, from the testator during his lifetime; that the size of the testator's estate is large enough to make it "proper" that she should receive more from it than the testator has given her in his will; that the testator's brother has been given a two-third of the residuary estate, whereas she has only been given one-third of it: and that it is equitable that she should at least get a share of the residuary estate equal to his.

On the other hand, Mr. Cromie, learned counsel for the executor and other beneficiaries under the will, submitted;- that during the lifetime of the testator, he and his wife became separated and she was paid allowance which, after some years, was reduced to £15 a month; that she accepted the reduced allowance and did not subsequently ask for more; that misconduct on the part of the testator had not been proved and the applicant had not sought a divorce from him; that, in all the circumstances, the testator had made provision for his widow's proper maintenance; that at the present time she was not in need; was earning, had funds of her own and will receive a substantial share of the testator's residuary estate; that the principle asset in the residuary estate consists of the testator's shares in Koranga Gold Sluicing Limited, a company that is in a sound position and that has good future prospects; that the testator had faith in that Company's mine at Koranga and may have, in mind that he was making his best asset the source of his wife's future income; and that there is no income tax or dividends from those shares; and that the provision of proper maintenance for a widow is not entirely governed by the size of the estate or by the testamentary disposition of a testator to others.

The question the Court has now to determine is, - Has the testator so disposed of his property by his will that the applicant, his widow, is "left" without "proper maintenance" that is to say without maintenance that is not merely "adequate", but is "proper" – having regard to all the circumstances?. I agree that, if the estate allows it, such maintenance would ordinarily be the maintenance a widow might properly expect to receive from her husband during his lifetime. As to that, the size of the estate, and the standard of living of the testator and his applicant wife, are circumstances to be looked at. In her affidavits, the present applicant has been at pains to stress that, for the greater part of her married life with the testator, and except for the last few months together at Koranga and except on occasional visits to Sydney and during their last month together at Point Piper, their mode of life was arduous and the conditions in which their lived primitive and lacking in many amenities. She undoubtedly went to Koranga in its early and naturally more difficult period, but many wives accompany their husbands into difficult corner of the earth and it is everyday knowledge that many wives have gone with their husbands to far less salubrious places in New Guinea than Koranga as a matter of wifely course. I think the applicant has somewhat over-stated the difficulties of her living conditions at Koranga. I am of the opinion also that the assistance that the applicant says she gave her husband at Koranga and that is now said to have helped him to amass his estate has, as to its effect, been over-stated: On analysis, the assistance she says she gave appears to have been rendered before Koranga Gold Sluicing Limited was formed in 1931 – that is to say, during the period from late 1929 to late 1931, or during a period of two years, - (not seven years, as she originally said). The nature and degree of the alleged assistance has been contradicted by Mr Fuller, in his affidavit. The operations at Koranga were mining operations and attendance to cases of sickness among the native employees would indirectly help those operations and possibly indirectly help the testator, during the two years mentioned, to make money: but, in my view, on the evidence before me, the assistance rendered by the applicant during that brief period would not have helped the testator to amass more than, at most, a very small part of his estate. The applicant has asserted that the testator left her for another woman whom he had "kept" and with whom he thereafter "lived": I have already said that in my opinion those assertions have not been proved. She does not appear to have instituted divorce proceedings against him. Of the rights and wrongs of the break between them I am in no position to judge: her statements are, so to speak, ex parte, because the other party, her husband, is now dead and cannot give his version of the matter. It is said that he agreed to pay her, and did for some years pay her, a monthly allowance of £40: she says he agreed to do this "under pressure" from her solicitors: Mr. White contends that the testator's payment of £40 a month shows that the testator considered this a proper amount for her maintenance. That may be so. It amounted to £480 a year, which is, I imagine, somewhat less than she is receiving or should be receiving (in cash or otherwise) by way of income at the present time from her earnings in salary, accommodation and food provided, from her own property, and from her interest in testator's estate. The allowance of £40 a month was reduced to £15 a month in early 1942 and she apparently accepted this and did not seek an increase later on, doubtless because she realised that the testator's financial position had then become less favourable, owing to the destruction for war purposes at Koranga, and possibly also because she was then maintaining herself at her nursing profession. As has been mentioned in the early part of this judgment, allowance paid by a testator during his lifetime for the maintenance of his wife from whom he has parted are circumstances to be taken into account but are not necessarily conclusive. The salary of £25 a month, with accommodation and food provided, that the applicant is now receiving as a nurse in the employ of the Administration cannot, of course go on forever; although it is not suggested that she is in ill-health or that it is likely to cease at an early date, there is the fact that she is now 48 years of age. By November of last year, she has accumulated £3,600 of her own in the Bank, not the manner in which she accumulated her parents but for greater part of her savings. Mr. White suggests that the fact, that the greater part of her money in the Bank derived from her self denials and savings, should make a difference; but, as I understand it, the relevant circumstances is, that she has £3,600 of her own in the Bank, not the manner in which she accumulated that large amount. As we have seen, her one-third interest in the testator's residuary estate has been estimated (on the basis of probate figures) by her at £4,994/5/5 nett and by an executor at £4,710/17/3 nett. But these are very conservative estimates, and the present value of her one-third share must be worth considerably more than the estimates, because the 7000 Koranga Shares were nominally valued for probate at £1 a share, yet each £1 share is backed by nett tangible assets of over £2: for that reason, I consider that her estimates (seeing that her interest on the 7000 shares is represented by 2333 shares) should go up by at least £2,333. Her estimate of her one-third share of income received from the residuary estate from the death of the testator in the Collaroy property, that was valued for probate at £1,200 and will ultimately become part of the residuary estate, should also be added.

Thus it would appear that, at the present time, the applicant's interest in the estate of the testator is worth, at the lowest at least £8,000. In addition, she had accumulated by November last the sum of £3,600 in the Bank. Further, she is receiving a salary of £300 per annum from the Administration and is also provided with accommodation and food free by the Administration. Her outgoings are, on her own showing, very small, and she says there is very little she can purchase. Her New Guinea income is free from income tax.

These figures, which I have just given do not take into account at all the future "income-producing" prospects of the testator's residuary estate, nor, in particular, the future prospects of one of its principal assets, viz., the share in the mine at Koranga. Mr. White submits that future prospects are matters of surmise: that is so, particularly where goldmines are concerned. On the other hand, the prospects at Koranga would seem to be very favourable, as possibilities go. Apart from the year in which operations were suspended halfway because of the Japanese invasion, in the two preceding years the Koranga mine paid dividends of 122½%. No doubt no one expects, in these days of increased costs, so large a dividend to be paid by Koranga again: if it were, the applicant's income would be enhanced by considerably more than £2,000 a year. But even if the mine becomes able to pay only a 25% dividend in future – and this is a possibility, if not a very likely probability – her income would be increased, from that source also, by £580.

However, leaving future prospects out of the question altogether, I think the applicant may rightly be described as being, at the present time, not wealthy, but in very comfortable financial circumstances. Of course, if the testator had in his will left her at least half of his residuary estate, as Mr. White has submitted he should have done, she would be still better off financially. In effect, the applicant asks the Court to recast the will of the testator so that it will be more in accordance with her heart's desire. But as has been repeatedly laid down in the cases, the question the Court now has to decide is not, whether the testator could have made larger or more generous provision for her out of his estate, but whether she has been left without such provision for her maintenance as is, in all the circumstances of the case, a "proper" provision for her maintenance. Bearing in mind the principles that are relevant to the adjudication of such a question and that have been referred to by me earlier in this judgment, and having regard to all the circumstances in this particular case, I am unable to find that the applicant has been left without proper provision for her maintenance and I feel that this is certainly not a case in which the Court should exercise the discretionary power, given to it under Section 3(1) of the Testator's Family Maintenance Ordinance in favour of the present applicant. Her summons is accordingly dismissed.

(Cost: After hearing learned counsel as to costs, the Court ordered that the applicant's summons be dismissed with costs, such costs to be taxed and those of the executors to be as between solicitor and client).