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Testator's Family Maintenance Act, Re [1976] PNGLR 360 (1 September 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 360 - Re Testator's Family Maintenance Act 1951-1959; Re Hugh MacLean 

[1976] PNGLR 360

N56

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN RE HUGH MACLEAN (DECEASED)

Waigani

Williams J

19-20 July 1976

1 September 1976

TESTATOR’S FAMILY MAINTENANCE - Failure by Testator to make proper provision for applicant - Applicant Widow - Duty of testator - Principles upon which proper provision determined - At what time inadequacy determined - Other relevant considerations - Domicile of testator relevant to question of jurisdiction of Court with respect to property out of jurisdiction - Nature and quantum of provision for applicant determined.

The Testator Hugh Maclean died in 1969 leaving a will dated 1963. The will appointed the Perpetual Trustee Company Limited as executor and trustee and devised and bequeathed the whole of the testator’s property to his trustee and directed payment to the widow applicant of a legacy of $10,000.00, and further made provision for four brothers and a friend out of one quarter of the residue with the balance of the residue to be divided equally between his six children (two of whom were children of a previous marriage). The net estate after payment of duties was estimated at $396,877 and consisted of assets in Papua New Guinea, Queensland, Western Australia and New South Wales. The testator had come from Western Australia in 1951, lived with the applicant, a Papuan, following some form of customary marriage, from 1957 and married the applicant in 1962, there being four children of the marriage. From 1961 the testator was confined to a wheelchair following a stroke and at the date of his death he and the applicant were living in affluent circumstances; the applicant was about twenty nine years of age, had never worked and had never been required to work. In 1972, the applicant remarried and subsequently had a child of that marriage, but at the date of hearing that marriage had failed and the whereabouts of her husband were unknown.

On an application by the widow seeking provision out of the estate for her maintenance and advancement pursuant to s. 4(1) of the Testator’s Family Maintenance Act 1951;

Held

(1)      Proper maintenance (under s. 4(l) of the Testator’s Family Maintenance Act 1951) connotes something different from adequate maintenance: 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 him for that purpose as a wise and just, rather than a fond and foolish, husband or father; the amount to be provided is not to be measured solely by the need of maintenance, but the Court, having to consider what is “proper” maintenance, must take into consideration the extent of the property left by the testator: and where the estate is a large one the Court is justified in making provision to meet contingencies which may have to be disregarded when the estate is small.

Bosch v. Perpetual Trustee Company Ltd. [1938] A.C. 463 followed and applied; Worladge v. Doddridge and Others [1957] HCA 45; (1957) 97 C.L.R. 1 referred to.

(2)      The adequacy or otherwise of any provision made in the will should be determined in the light of the facts existing at the date of death of the testator.

Coates v. National Trustees Executors and Agency Company Ltd. and Another [1956] HCA 23; (1956) 95 C.L.R. 494, and Dun v. Dun [1957] HCA 91; (1957) 99 C.L.R. 325 followed.

(3)      Regard should also be had, not only to events that had occurred at the date of the testator’s death but also to such other contingencies as ought to have been foreseen up to the time of his death as likely to affect the circumstances of the applicant.

Coates v. National Trustees Executors and Agency Company Limited and Another [1956] HCA 23; (1956) 95 C.L.R. 494, and Dun v. Dun [1957] HCA 91; (1957) 99 C.L.R. 325 followed.

(4)      In the circumstances, the provision made for the applicant, in the will of the testator was not a proper one.

(5)      The circumstance of the applicant’s remarriage was not a matter affecting her status as an applicant, and relevant only to the consideration of quantum.

Re Claverie and the Testator’s Family Maintenance Act (1970) 91 W.N. (N.S.W.) 858 referred to.

(6)      In considering the quantum of the provision to be made by the court, regard should be had to “all the circumstances of the case”, which include the age, mode of life and general condition of the applicant and her capacity for meeting them; and the nature, extent and character of the estate and the other demands upon it.

The Pontifical Society for the Propagation of the Faith and St. Charles Seminary, Perth v. Scales [1962] HCA 19; (1962) 107 C.L.R. 9 at p. 19 referred to.

(7)      There was in the circumstances no moral claim to the bounty of the testator superior to that of the applicant.

(8)      Proper provision for the applicant should include firstly some capital for security, secondly a home for life of a good standard, and thirdly an ample income for her life.

(9)      In order to acquire a domicile of choice in a country a person must intend to reside in it permanently or indefinitely. (Dicey and Morris) The Conflict of Laws 9th ed. p. 86.

(10)    At the date of his death the testator was domiciled in Papua New Guinea, and the orders therefore can only be binding on the estate both real and personal in Papua New Guinea and the personal property situated outside.

(11)    The burden of the provisions made out of the testator’s estate for the applicant should be borne by all the beneficiaries rateably.

Application

This was an application by a widow under s. 4 (1) of the Testator’s Family Maintenance Act 1951, for an order that proper provision be made out of the estate of Hugh Maclean deceased for her maintenance and advancement.

Counsel

JB Kearney QC and AM Crane for the applicant widow

PW Young and MJ Wright for the respondent Trustee Company

RHB Wood for Ian James Maclean and Terence Hugh Maclean (two of the children beneficiaries)

Cur. adv. vult.

1 September 1976

WILLIAMS J:  This is a claim made by the widow of the late Hugh Maclean under s. 4 (1) of the Testator’s Family Maintenance Act 1951 for an order that provision be made out of the estate of the deceased for her maintenance and advancement.

The testator died on the 1st September, 1969 leaving a will executed on the 20th November, 1963. The will appointed the Perpetual Trustee Company Limited as executor and trustee and devised and bequeathed the whole of the testator’s property to his trustee and directed the payment to the applicant of a legacy of £5,000.0.0. The trustee was further directed to realize the estate and after payment of debts and funeral and testamentary expenses to hold one-quarter of the balance remaining on trust to pay the income therefrom to the testator’s mother during her lifetime and after her death to divide the one-quarter share equally between the testator’s brothers Alex, Duncan, Harry and John Maclean and one Stephenson Fox. As to the remaining three-quarters the trustee was directed to divide it equally between the testator’s children Ian James Maclean, Terence Hugh Maclean, Flora Maclean, Donald Maclean and such other children as may later be born.

The estate is a very large one consisting of assets in Papua New Guinea, Queensland, Western Australia and New South Wales. It appears that the present estimated value of the estate in the hands of the trustee is $396,877.58 and that this figure is arrived at after payment of duties totalling approximately $84,000.00. The sum of $396,877.58 is, however, subject to reduction by amounts as yet unascertained for legal costs, accountancy fees and income tax. The estimated value of the estate in Papua New Guinea is approximately K191,000.00. A large proportion of this is represented by shares in companies. Whether or not the estimated value will be ultimately realized can, of course, only be determined by future events.

The applicant is about thirty-five years of age. She is a Papuan lady who was born in the Kairuku area. The testator was born in Western Australia on the 15th July, 1917 and came to Papua New Guinea in the year 1951. He had thus at the date of his death been living in Papua New Guinea for about eighteen years. The applicant and the testator were married in Port Moresby on the 26th April, 1962. They had been living together apparently following some form of customary marriage since 1957. The testator had been previously married but that marriage was dissolved in 1951. There are two children of that marriage, Terence Hugh Maclean and Ian James Maclean born respectively in 1943 and 1945 and who, as previously mentioned, benefit under the will.

At the hearing the respondent trustee company appeared by counsel. By an order made by the Registrar of this Court on a summons for directions leave was given to any beneficiary named in the will to appear on this application. Pursuant to this Order Terence Hugh Maclean and Ian James Maclean appeared at the hearing by counsel. I shall refer to these persons as “the objectors”.

The applicant was a school girl aged about sixteen living with her parents at Hanuabada when she and the testator commenced living together. Apparently there was some discussion between the testator and the applicant’s father concerning the payment of a bride price which resulted in the testator building a house on land belonging to the applicant’s mother. The testator and the applicant then lived in part of the house and the applicant’s family lived in another part of the house. Later they lived in a flat in Lawes Road and eventually moved to a new house at Korobosea.

There are four children of the union between the testator and the applicant. They are Flora Maclean born on the 5th October, 1958, Donald Maclean born on the 6th September, 1960, Diane Betty Maclean born on the 25th May, 1964 and John Stuart Maclean born on the 31st August, 1967.

Early in 1961 the testator suffered a stroke. He spent a short time in Port Moresby General Hospital and then went to Western Australia for approximately one year when he returned to Papua New Guinea. On his return he required the use of a wheelchair for mobility and this continued until his death.

Following the death of the testator the applicant with the children in January, 1970 moved to Western Australia and remained there until December, 1971 when they returned to Papua New Guinea. In 1972 the applicant met Juan Osama Makari a Syrian then living in Papua New Guinea. The applicant and Makari were married in January, 1973. However, this association came to an end in August, 1974 when Makari was deported from Papua New Guinea. There is one child of the marriage. No steps to dissolve the marriage have been taken. According to the evidence of the applicant she has no knowledge of her husband’s whereabouts.

It is convenient to consider this matter in two aspects. The first concerns the entitlement of the applicant to relief and the second the quantum of the entitlement if the first is decided in her favour.

An entitlement to relief of the nature claimed must be found in the provisions of s. 4 (1) of the Testator’s Family Maintenance Act 1951 as amended. That Act has been repealed and its substance re-enacted in another Act but it is common ground that the repealed Act applies to the circumstances of this case. Section 4 (1) is in the following terms:

“4(1)   If a person (in this Act 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.”

Legislation of a similar kind in the Australian States and in New Zealand has, on a number of occasions, been considered by the Courts. It seems that a leading case in this field is that of Bosch and Another v. Perpetual Trustee Company Limited, and Others[cdxxvii]¹. In that case the Judicial Committee of the Privy Council considered the provisions of s. 3 (1) of the Testator’s Family Maintenance and Guardianship of Infants Act of New South Wales. Whilst that section is not in identical terms to those of the Papua New Guinea Act it does not appear to me that the differences are of any substance so that the exposition by the Judicial Committee of the New South Wales section is very persuasive authority when construing the Papua New Guinea section.

In my view the following general principles may be extracted from Bosch’s case[cdxxviii]². “Proper” maintenance connotes something different from adequate maintenance: that 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 him for that purpose as a wise and just, rather than a fond and foolish, husband or father: that the amount to be provided is not to be measured solely by the need of maintenance but the Court, having to consider what is “proper” maintenance, must take into consideration the extent of the property left by the testator: and where the estate is a large one the Court is justified in making provision to meet contingencies which may have to be disregarded where the estate is small.

It appears that the principles enunciated in Bosch’s case[cdxxix]³ have been applied by the High Court of Australia in a number of cases of which Worladge and Another v. Doddridge and Others[cdxxx]⁴ is an example.

The question also arises as to whether upon an application such as the present one the Court, in deciding on the adequacy or otherwise of the provision made in the will for the applicant, should have regard to the facts as they existed at the date of the application or to the facts as they existed at the date of death of the testator.

This question was a controversial one in which conflicting views were held in a number of the Australian States and in New Zealand. It was, however, resolved in the High Court of Australia in Coates v. National Trustees Executors and Agency Company Limited and Another[cdxxxi]⁵. In that case it was held by a majority of the Court that the adequacy or otherwise of a provision made in the will must be determined in the light of the facts as they existed at the date of death of the testator. This decision was affirmed in the High Court of Australia again by a majority in Dun v. Dun[cdxxxii]⁶. The case was taken to the Judicial Committee of the Privy Council[1959] UKPCHCA 2; , (1959) 100 C.L.R. 361, where the majority decision of the High Court was affirmed and the majority decision in Coates’ case[cdxxxiii]⁷ approved. The cases cited are also authority for the proposition that the Court should have regard not only to events that had occurred at the date of the testator’s death but also to such other contingencies as ought to have been foreseen up to the time of his death as likely to affect the circumstances of the applicant.

It is thus necessary to turn to the facts as they existed at the date of the testator’s death, viz., 1st September, 1969. On that date the testator was residing in Port Moresby with his wife (the applicant) and their four children. At that time the children were aged approximately eleven, nine, five and two respectively and the applicant herself was approximately twenty-nine years of age and thus had a long life expectancy. There is evidence that at that time the testator, his wife and family were living in a fine home with domestic assistance provided and in circumstances of apparent affluence. In fact, as shown by Exhibit “B” to the affidavit of the applicant sworn on 24th February, 1976, the testator was, at the date of his death, a wealthy man. There is no evidence which suggests that relations between the testator and the applicant were in any way strained. Indeed the evidence clearly shows that the applicant had, since the testator had suffered a stroke in 1961, diligently applied herself to attending to his many physical needs. The applicant had no training which would have equipped her for remunerative employment. It appears that the applicant had no money of her own but had some shares which were subsequently sold and realized $10,000.00.

Counsel for the respondent trustee company addressed no argument on the question of the applicant’s entitlement to some relief stating that, in all the circumstances of the case, it would be difficult indeed to sustain any argument that she was not so entitled. Counsel for the objectors however, submitted that the provision made in the will for the applicant was a proper one. He contended that a court should not lightly interfere with a testator’s dispositions. The evidence showed that, despite the stroke suffered by the testator, he maintained the capacity to the time of death to manage and control his business affairs. Had he considered the provision in favour of the applicant in his 1963 will inadequate he had the capacity to alter it. He might well have considered that there were dangers inherent in placing the applicant in control of a large sum of money or of valuable property in circumstances where she had no business training and might be readily susceptible to traditional calls by the members of her family or tribal group for financial benefits. It was submitted that the testator had acted fairly and justly towards the applicant, his children and other members of his family to whom he considered he owed a duty.

It might well have been imprudent for the testator to have conferred upon the applicant substantial benefits of a capital nature. To say this however seems to me to beg the question whether at the time of the testator’s death the will made provision proper for her maintenance and support. She was the wife of a wealthy man and had been accustomed to a standard of living far higher than that enjoyed by her own family group. She was a young woman faced with the responsibility for rearing four young children. She had no home secured to her. She had no training by which she might secure remunerative employment and in any event the necessity to look after the young children would be a serious impediment to her engaging in employment. In all these circumstances I have no hesitation in finding that the provision in her favour was not a proper one. The provision in the will coupled with the shares she had would have been sufficient only to maintain her for a few years.

It is, I think, convenient to consider at this point two matters which are raised on the material before the Court which may be said to affect the question of the applicant’s eligibility for an award in her favour.

The first concerns her marriage to Mr. Makari. It appears to be thought by some of the beneficiaries named in the will that that disqualifies her from obtaining any further provision from the estate and that, to the extent that she may be in need of maintenance, she should look to Mr. Makari for it. In my view it is clear upon the authorities that the circumstance of her remarriage is not a matter affecting her status as an applicant. I have already referred to the authorities which establish that in determining the adequacy or otherwise of the provision in the will regard must be had to the facts as they existed at the time of the testator’s death. If, at that time, the applicant was left without adequate means for her proper maintenance then her status as an applicant arises. In this respect reference should be made to the decision of McLelland C.J. in Equity in Re Claverie and The Testator’s Family Maintenance Act[cdxxxiv]⁸ in addition to the cases cited earlier by me. The circumstance of her remarriage is, in my view, relevant only to the consideration of quantum.

The second question raised in the material before the Court concerning the applicant’s eligibility for an award is that arising from para. 7 of the affidavit of Ian James Maclean. The inference to be drawn from that paragraph is that the testator was not the father of the children Diane Betty and John Stuart Maclean and this reflected on the character of the applicant in such a way as to empower the Court to refuse the application under s. 7 of the Testator’s Family Maintenance Act.

The children concerned were born during the marriage union of the testator and the applicant. There is a presumption that a child born in wedlock is legitimate. It is a presumption of fact which may be rebutted by clear and satisfactory evidence that the child was not procreated by the husband (Cocks v. Juncken[cdxxxv]⁹). There is no evidence in this case which rebuts this presumption. Indeed there is evidence which supports it. In evidence are certified copies of the certificates of registration of birth of the children Diane and John. In each case the name of the informant to the registration authorities is shown to be that of the father, the testator. Counsel for the objectors was professionally bound by his instructions to raise the matter but, with complete propriety in my view, did not pursue it. Upon the evidence before me I completely reject this proposition. There is nothing in the evidence which causes me to think for one moment that the applicant is other than a lady of good character.

Accordingly it is my view that the applicant has established the jurisdiction of this Court to make further provision for her and I turn now to a consideration of the quantum of that provision. In considering this question the statutory provision requires that regard should be had to “all the circumstances of the case”. The authorities show that relevant circumstances are the age, mode of life and general condition of the applicant; the needs of the applicant and her capacity for meeting them; and the nature, extent and character of the estate and the other demands upon it (see, e.g., The Pontifical Society for the Propagation of the Faith and St. Charles Seminary, Perth v. Scales[cdxxxvi]¹⁰).

The evidence shows that following the testator’s death the applicant and the children went to Western Australia. They remained there until December, 1971 when they returned to Papua New Guinea. They remained there until December, 1974. In the meantime the applicant met and married Juan Osama Makari previously referred to.

The applicant has deposed that she was unable to adjust herself to her former village environment and found she had lost a lot in common with her own people. In December, 1974 she and the children moved to Redcliffe near Brisbane. There they are residing in a four bedroomed home owned by Ela Pty. Limited, a company in which the testator had a controlling interest. She has in fact not paid rent for the home and is apparently indebted to the company for rent in some unascertained sum.

It appears from the affidavit of Mr. Paterson, a senior trust officer in the employ of the respondent trustee company, that since the testator’s death she has received payments from Papua New Guinea companies whose shares were beneficially owned by the testator totalling $47,354.26. Of that $17,054.26 was advanced by way of loan on account of herself and the four children of the marriage of which amount $7,125.13 has been apportioned to the applicant. $4,000.00 was paid to her by one of the Papua New Guinea companies as an ex gratia payment pursuant to the Articles of Association of the company which permit payments of this nature to be made to widows of deceased directors. The remaining $26,300.00 of the amount of $47,354.26 previously mentioned was paid to the applicant for the maintenance, education, advancement and benefit of the applicant and the four children. It appears that these payments ceased in mid 1975.

It further appears from the affidavit of Mr. Scobie, the Manager of the respondent trustee company, that it is not proposed that further payments be made to the applicant. It is proposed that the companies referred to reduce their assets into cash and in due course be wound-up. In this event it will be necessary for the advances made to the applicant to be repaid and that there be recovered from her a sum for the rent of the house she has been occupying. It will also be necessary for Ela Pty. Limited to obtain vacant possession of the Redcliffe house in which the applicant and the children are presently residing. It is, however, proposed that they remain in the house until it is ready to be sold in the due course of administration.

The evidence of the applicant shows that from the advances received by her the sum of $6,000.00 was deposited in Perth Building Societies. Since the advances from the companies ceased in mid 1975 the applicant has apparently been obtaining remittances from the amount deposited with the Perth Building Societies.

Flora Maclean is now nearly eighteen years of age. She is working and resides with her mother. She pays ther mother $10.00 per week for board. Donald Maclean is nearly sixteen years old. He finished school at the end of last year. The applicant said that he is not in employment but is seeking an apprenticeship. She hopes he will gain employment soon and if he lives at home she will expect him to pay board. The other children Diane and John are aged respectively about twelve and nine and are still attending primary school. The applicant said that she is planning that they will eventually go to a secondary boarding school. She wishes to remain living in Queensland but has in mind moving nearer to Brisbane where the employment opportunities for the children are greater than those offering in Redcliffe.

I turn now to the evidence concerning the other beneficiaries named in the will. Terence Hugh Maclean and Ian James Maclean are now respectively aged about thirty-three and thirty-one. An affidavit by Ian James Maclean was filed apparently on his own and on his brother’s behalf. The affidavit discloses no information relative to the employment or the financial status of either of them. There is, therefore, no evidence before me concerning matters of this nature. The affidavit of Ian James Maclean is largely concerned with imputations against the character of the applicant and the legitimacy of the two children Diane and John Maclean. In the absence of any other information I can only assume that these two men are established in life and have no particular needs.

The testator’s mother Drusilla Maclean, who was also a beneficiary under the will, predeceased the testator. As to the testator’s brother John Maclean there is a letter from him annexed to an affidavit by Mr. Scobie. In this letter Mr. John Maclean stated that he considered that the applicant was entitled “to succeed in her application and be granted a considerable portion of the estate in order that she may be able to maintain the standard of living enjoyed whilst the deceased was alive.” He also stated that he is a Commonwealth Public Servant employed by the Taxation Department in Perth who is dependent on his salary for a livelihood and had no private means “which would influence my thoughts as expressed.” As to Mr. Stephenson Fox there is a letter from him annexed to Mr. Scobie’s affidavit. It appears that Mr. Fox is a businessman residing in Goroka, Papua New Guinea and in his letter expressed no opposition to this application. As to Harry Maclean there is a letter from him annexed to Mr. Scobie’s affidavit. In this letter Mr. Maclean stated that he did not intend to divulge his financial position except the fact that he was in regular employment on a weekly wage of $134.95. He also stated that his wife is in a state of ill health, that she is partially disabled and may require attention for the rest of her life. He expressed opposition to the present application. As to Duncan Maclean it appears from the affidavit of Mr. Scobie sworn on the 13th July, 1976 that a letter was received from Mr. Duncan Maclean in which it was stated that he was retrenched from his regular employment some two years ago and has since been employed on part-time work on a wage of $70.00 per week (less taxes) which is “just sufficient to keep me solvent.” There appears to be no evidence concerning Alex Maclean. Upon all this evidence I do not think that any moral claim to the bounty of the testator, superior to that of the applicant, emerges.

It was submitted on behalf of the applicant that she has need for provision in three respects. The first is that she needs some capital for security. Secondly, she needs a home for life of a good standard. Thirdly, that she should be provided with an ample income for her life.

As to the first branch of the claim, the applicant seeks a provision equivalent to the legacy bequeathed under the will, namely K10,000.00. This is suggested because if she were simply left with the legacy under the will she would, by reason of the time which has elapsed since the testator’s death, be entitled to interest on that legacy from the date of death and that it may be more convenient if in addition to other orders a provision were made by this Court of the equivalent amount of the legacy which would run from the date of the order. Under this branch of the claim the applicant also seeks a provision for an amount equivalent to the advances that she has received from the companies and also an amount equivalent to the amount for which she is liable for rent of the Redcliffe house. This would obviate the necessity for a number of mathematical calculations apportioning the benefit between the applicant and the children.

As to the second branch of the claim, namely, the provision of a house for the applicant, it was submitted that a proper provision would be for a house to be purchased out of the estate and held by the trustee for the applicant for her life. It is submitted that it would be appropriate to set aside a fund of up to K50,000.00 for this purpose. It is also submitted that provision should be made whereby the trustee should be able to purchase a substitute house should future events make it necessary or desirable for the applicant to change her home.

As to the third branch of the claim it is submitted for the applicant that provision should be made for the appropriation of a capital sum of an amount of approximately K80,000.00 the income from which would produce the applicant an income for life.

I propose to deal now with the first branch of the claim, namely, the suggested provision of some capital security for the applicant. Counsel for the respondent trustee company agreed that a provision of the kind claimed by the applicant would be a proper provision. I did not understand counsel for the objectors to oppose the applicant’s claim for the provision of a legacy of K10,000 but he did oppose the application for a provision that the indebtedness by the applicant to the companies be discharged. His submission in this respect was that it was not an appropriate matter to be dealt with in an application of this nature as it was a matter between the applicant and the liquidators of the companies if and when appointed.

I would propose to grant this aspect of the claim. So far as the claim involves the discharge of the applicant’s indebtedness to the companies it seems to me that without a provision of the nature sought the applicant would be exposed to a very substantial indebtedness which has a clear and distinct relevance to the question of her future needs. It is, in my view, clear that this indebtedness arose in circumstances where no proper provision was made for her in the will. In other words, had proper provision been made for her in the will there would have been no occasion for the applicant to seek the advances which were made for her maintenance and support and that of the four children. Any order for the payment of a regular income to the applicant which I may make in the matter can be effective only from the date of its pronouncement. The effect of making an order of the kind sought would be to give the applicant relief as from the date of death of the testator. This, I think, is reasonable and proper in all the circumstances.

I turn now to the suggested provision of a house for the applicant. It is not known how long she will be able to live in her existing home. The suggestion is that a sum be set aside and that a house be purchased by the trustee to be held in trust for the applicant during her lifetime. There is no evidence of what this sum should be. The applicant suggests it should be a sum not exceeding K50,000.00. Counsel for the objectors submits that it should be a sum not exceeding the sale price of the Redcliffe house. It is not known when the company will be wound-up and the liquidators’ sale of the house effected. The applicant said in her evidence that she desired to move nearer to Brisbane in order to improve the employment opportunities of the children. I do not see any necessary tie between the provision of a home for the applicant and the sale of the Redcliffe house. It may be that the applicant desires to move before the sale of the Redcliffe house by the company liquidators. I propose to order that a sum be set aside for the purchase of a home unrelated to the sale price of the Redcliffe house. There is no evidence of the costs of houses in the Brisbane area but from my general knowledge I think that the provision of a sum not exceeding K50,000.00 (to include the expenses associated with the acquisition of the property) would certainly not be an extravagant provision. I have in mind that it must be large enough to house the applicant and the children while they are living with her and that it should be one providing a reasonable standard of comfort. I have no doubt that the respondent trustee company has considerable experience in matters of this kind and would be astute to ensure that the property purchased would not be overpriced. Of course, upon the death of the applicant the property would form part of the residue of the estate. I think also that the applicant should pay rates, taxes, assessments, insurances and outgoings and ensure that day to day repairs and maintenance are carried out at her expense. Substantial repairs should be borne by the applicant and other trustees in the proportions suggested in para. 3 of the draft Minutes of Order. It may well be that as the children grow up and leave the applicant’s home that she may need a smaller home. I agree that, as suggested in para. 4 of the draft Minutes of Order, should the applicant desire to relinquish the original house purchased for her she should be at liberty to apply to the executor to have that house sold and the net proceeds of sale applied to the purchase of another house for her. The cost of the substitute house should not exceed the proceeds of sale of the original house together with the balance of any moneys standing to the credit of the sum set aside for the purpose of providing her with a home.

I now turn to a consideration of an income provision for the applicant. For her it is submitted that a sum be set aside the income from which would provide her with an income for life. For the trustee it is suggested that a sum be set aside which would exhaust itself in say twenty (20) years’ time. This would mean that at the end of this period the applicant would receive no income under any order I may make. It is said that by this time the children would be off her hands, that she would be able to undertake employment, or she would be eligible for pension entitlements. A provision of this kind may offer some advantage to the applicant from the point of view of income tax. It would also involve the setting aside of a smaller sum than would be necessary under the proposal made by the applicant thus improving the position of the other beneficiaries under the will. In this respect it should be kept in mind that the children of the testator’s first marriage are much of the same age as the applicant who may outlive them. In these circumstances these children may not survive to enjoy their interest as remaindermen.

In my view it would be a wrong approach for this Court to place the applicant in a position where in her later years of life she would be forced to seek employment or maintain herself on a pension. As has been said, she has no particular skills which may lead to remunerative employment. The testator died a very wealthy man. It appears from the evidence that at the time of his death he and the applicant were on harmonious terms. I do not think that the testator would have envisaged or desired that the applicant in her declining years should be reduced to a position where she would be dependent upon finding employment for which she has little or no qualifications or upon a government pension. In all the circumstances it is my opinion that the proper provision for this Court to make is one which ensures her an income for life. I therefore propose to make an order along the lines suggested by counsel for the applicant.

The applicant in her evidence stated that for the maintenance of herself and the children she would require a sum of K150.00-K200.00 per week. Her evidence in this respect was not very clear and I do not think she had given the matter any close consideration. It does seem that during the years 1970-1975 she was receiving by way of advances from the companies an amount approximating $A100.00 per week and that this amount sufficed. It seems that since those advances ceased she has been receiving approximately $A250.00 per fortnight from the funds in Western Australia.

In calculating a sum proper in the circumstances for the maintenance and support of the applicant a number of considerations arise. First, there is a question arising from the applicant’s marriage to Mr. Makari. It has been said she may properly look to some support from him. In her evidence the applicant said that she had not seen her husband since his departure from Papua New Guinea and that she had no knowledge of his present whereabouts. She said that in December, 1974 she received a letter from her husband to which she replied giving her Queensland address but had received no further communication from him. In the letter she received Makari’s address was given as Senegal, West Africa. I see no reason to doubt the applicant’s evidence in this respect. Whatever her rights at law may be against her husband it seems to me unreal in any practical sense that financial support from this source may be anticipated.

Another consideration is that the applicant may secure a dissolution of her present marriage and again marry and find herself in circumstances more favourable than those arising from her present marriage. It has been pointed out that she is still comparatively young and is an attractive and personable woman. I am, however, not disposed to attach much weight to speculative considerations of this kind. My understanding of the matter is that this is not a case akin to the assessment of damages where so far as the parties other than the applicant are concerned an award is made on a once and for all basis. Section 12 of the Testator’s Family Maintenance Act empowers the Court at any time and from time to time on the motion of the executor or some person beneficially interested in the estate to rescind or alter an order. It seems to me that this section provides adequate protection for the other beneficiaries against contingencies such as the further marriage of the applicant.

In all the circumstances it is in my view appropriate that there be set aside a sum sufficient to produce for the applicant an income of $A120.00 per week. It was said in argument that it would be necessary to set aside a sum of approximately $A80,000.00 to produce this sum. I propose that the necessary mathematical calculations be made by the parties for insertion in a final order. I also propose that this income be paid to her on a monthly basis.

In deciding on a sum of $A120.00 I have taken into account the incidence of taxation and the inroads of inflation. I have also had regard to the fact that as the children grow up they will in all probability be able to fend for themselves. I also have in mind that whilst the will made no provision for advancement of income of the presumptive shares of residue held on behalf of the infant children it is proposed in the draft Minutes of Order that I should make an order authorizing the trustee to make advances to the applicant for this purpose.

Counsel for all parties submit that I should make a declaration concerning the domicile of the testator at the date of his death. This is, of course, important as it bears upon the property available to meet any order I may make in the applicant’s favour. Counsel both for the applicant and for the respondent trustee company submit that, upon the evidence, the testator was at the date of his death domiciled in Papua New Guinea. Counsel for the objectors, however, contends that the evidence does not support a finding of domicile in Papua New Guinea.

It is clear that the testator had a domicile of origin in Western Australia. The question is whether or not he acquired a domicile of choice in Papua New Guinea. In order to acquire a domicile of choice in a country a person must intend to reside in it permanently or indefinitely (Dicey and Morris The Conflict of Laws, 9th ed. p. 86). The evidence shows that the testator came to this country in 1951 and resided here to the date of his death in 1969. His only absences were apparently for holiday and medical purposes. He entered into a customary marriage with the applicant who is an indigenous Papua New Guinean woman. This was later formalized by marriage according to law. He engaged in business enterprises in this country and acquired substantial assets. It seems that a large portion of the Papua New Guinea assets consisted of his interests in Papua New Guinea companies with which he was actively associated. Following his stroke in early 1961 he spent nearly twelve months in Western Australia, apparently for the purpose of receiving medical treatment there. He then returned to Papua New Guinea and moved from Hanuabada to a flat in Lawes Road. Shortly after the birth of Diane (which was in May, 1964) he moved to a new home in Korobosea which was, according to the evidence, a residence of a very high standard. He continued to reside there until his death apart from an absence in Western Australia of approximately twelve months duration in 1967 presumably for medical purposes. In my view it is significant that despite his physical disabilities he elected to return to Papua New Guinea after his absences in Western Australia. This to me is a clear indication that he regarded Papua New Guinea as his home. Were it otherwise one would think that he would have elected to remain in Western Australia where it may well be that the amenities of life for a man in his physical condition may well be greater. It does not appear that he was forced to return to Papua New Guinea for economic conditions as he was a man of considerable substance. It was submitted by counsel for the objectors that domicile in this country by an expatriate Western Australian in 1969 would be an unusual thing to find. I think it is notorious that in the post-Independence period a number of expatriate persons have sought citizenship in this country, which, I think, is indicative of the fact that a number of expatriate people wish to make Papua New Guinea their permanent home. Any difficulties which may arise relating to the obtaining of citizenship in this country are of recent origin and would not, I think, be a matter of concern to the testator as long ago as 1969. Upon a consideration of all the matters to which I have adverted I find that at the date of his death the testator was domiciled in Papua New Guinea.

A question arises as to where the burden of any orders made by me in favour of the applicant should fall. The suggestion made in the draft Minutes of Order is that the burden should fall upon the beneficiaries other than the children of the testator’s second marriage. It may be said in favour of this proposition that the testator had a higher moral duty towards these children rather than towards the children of his first marriage who have adduced no evidence concerning any need they may have and who presumably are established in life. Further, it appears that they had little association with their father following his taking up residence in Papua New Guinea. Notwithstanding this the testator himself apparently considered that all the children should be treated on an equal footing. It might also be said that the children of the second marriage may derive some benefit from the provision to be made for the applicant whilst they are residing with her. In my view no distinction should be made in favour of the children of the second marriage and the burden should be borne by all the beneficiaries rateably.

I have found that the testator was at the date of his death domiciled in Papua New Guinea. It seems clear on the authorities that this Court as the Court of domicile of the testator can deal with all the estate property both real or personal within Papua New Guinea but with personal property only situated outside this country. There is valuable real estate in Australia particularly in Queensland. The question is one of importance in the event that the Papua New Guinea estate does not realize sufficient to meet the provisions in favour of the applicant which I propose to make. It is hoped that the Papua New Guinea assets will be sufficient.

However, it may subsequently emerge that the Papua New Guinea estate is insufficient. With this possibility in mind the applicant has, I understand, brought proceedings similar in kind to the present in other places. It is, I believe, the desire of the applicant and the respondent trustee company that this Court as the Court of domicile decide the overall question of the applicant’s entitlement and that a multiplicity of proceedings be avoided. With this in mind the applicant is prepared to consent as a condition to any order that I make in her favour to a further order confining any application to the Australian Courts to the question of making up the deficiency (if any) which may be found after realization of the Papua New Guinea assets in the amount necessary to meet the provisions in her favour that I may make.

I have in the foregoing endeavoured to indicate my views on the substance of the claim generally. There are a number of matters raised in the draft Minutes of Order which appear to me to be of a machinery nature only. As suggested by counsel at the hearing I will refrain from making any formal orders at this stage but will leave it to the representatives of the parties to submit formal orders to give effect to these reasons.

Solicitors for the applicant: Francis & Francis.

Solicitors for the respondent Trustee Company: Craig Kirke & Wright.

Solicitors for Ian James Maclean and Terence Hugh Maclean: McCubbery Train Love & Thomas.

[cdxxvii][1938] A.C. 463.

[cdxxviii][1938] A.C. 463.

[cdxxix] [1938] A.C. 463.

[cdxxx](1957) 97 C.L.R. 1.

[cdxxxi](1956) 95 C.L.R. 494.

[cdxxxii](1957) 99 C.L.R. 325.

[cdxxxiii](1956) 95 C.L.R. 494.

[cdxxxiv](1969-1970) 91 W.N. (N.S.W.) 858.

[cdxxxv](1947) 74 C.L.R. 277.

[cdxxxvi][1962] HCA 19; (1961-1962) 107 C.L.R. 9 per Dixon C.J. at p. 19.