feature …
or perhaps, Islam, she would be an ‘Excluded Person’. In fact it is arguable that, if she took a deep interest in, or was associated with persons who practised these faiths, she would fall foul of the provision. Most Australians would regard freedom of religion a part of their birthright. The plaintiff, in order to be sure the trust would vest, in her when she turned 30 would have to give up that basic human right. That is an extraordinary proposition.”
14.1.3 has become an alcoholic and/or whose capacity for rational behaviour in a competent and satisfactory manner has been impaired by alcohol. … 14.1.5 is or has been, in the opinion of my Trustees, recently suspected or knowingly had any involvement or association whatsoever in relation to illegal drugs. … 14.1.7 is, in the opinion of my Trustees, a member of or in any other way involved with any religious body other than the Roman Catholic, Anglican, Presbyterian, Baptist, Uniting or other similar traditional faiths, or …
THE TESTS TO BE APPLIED In Singer v Berghouse2, the High Court adopted a two-stage test. The test for the first stage, often called the jurisdictional stage, was stated at [21]: The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was adequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationships between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The Master stated at [27] and [28]: 27.
28.
“The strangest aspect of the Trust is cl 14. This provision could operate in an entirely oppressive fashion. It is arguable if the plaintiff were convicted of a drink driving offence she could be excluded as a beneficiary under the terms of cl 14.1.3. The same is true if she were convicted of simple possession of marijuana. It may even be the case if she was suspected of involvement with someone who used an illicit substance she could be excluded under cl 14.5. The most egregious of all the provisions is cl 14.1.7. If the plaintiff converted to Buddhism,
Their Honours went on to say at [24]: “ … the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing.” In the process of deciding the jurisdictional question the court looks at all the circumstances of the case, including need and moral claim in an
objective manner and makes a finding of fact that adequate provision has or has not been made for the applicant. In regard to the second stage the High Court in Singer v Berghouse3 at [19] stated: 19. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. The second stage, which only arises if the first determination has been made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant (i.e. the quantum or the amount of money). DID THE DECEASED’S WILL ADEQUATELY PROVIDE FOR OLIVIA MEAD? The Master applied the first or jurisdictional stage of the two-stage test to the facts of the case. The Master found the will with the trust for Olivia unwieldy and unworkable. The term ‘adequate’ that was almost always used in the context of whether the financial provision was sufficient could also be used to describe the form in which provision is made in the will. The Macquarie Dictionary has, as a definition for ‘adequate’ the word ‘suitable’. The Master found that the structure mandated by the will and the trust was not a suitable provision for the proper
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