DIAMOND v THE STANDARD BANK OF SOUTH AFRICA LIMITED (EXECUTOR) AND

FOUR OTHERS (1965) ZR 61 (CA)

COURT OF APPEAL
BLAGDEN CJ, PICKETT AND CHARLES JJ
12th May 1965
Fly note and Headnote
[1] Civil Procedure - Appeal - non-discretionary judgments by lower court -
function of appellate court:
On an appeal from a non-discretionary judgment or order, the appellate court focuses on
whether the lower court (1) was correct in principle or application of the relevant law, (2)
made findings of primary fact supported by the evidence and by a proper approach to the
evidence, and (3) made proper conclusions from the primary facts found.
[2] Succession - Wills - maintenance of dependant not given adequate provision
in will - Inheritance (Family Provision) Act construed generally:
The Inheritance (Family Provision) Act authorises a departure from the dispositions of the
testator only in the limited function of providing reasonable provision for certain of the
testator's dependants who did not receive such provision in the will.
[3] Succession - Wills - 'reasonable maintenance' defined - Inheritance (Family
Provision) Act construed:
'Reasonable maintenance' for a dependant not adequately provided for in the testator's
will refers to the testator's failure to provide adequate maintenance for proper support,
but the court may also consider whether the testator had good reason for making the
provision in question.
[4] Succession - Wills - 'reasonable maintenance' defined - objective test -
Inheritance (Family Provision) Act construed:
An objective test is used to determine whether the testator made 'reasonable' provision
for a dependant; relevant circumstances to be taken into account include, inter alia: (1)
the size of the nett estate; (2) the past, present and future income and capital of the
claimant (from any source); (3) the conduct of the claimant in relation to the deceased;
and (4) the deceased's reasons for the provision made for the claimant.
Cases cited:
(1) In re Pugh [1943] 2 All ER 361.

(2) In re Inns [1947] 2 All ER 308.

(3) Ward v James [1965] 1 All ER 563.

(4) In re Howell [1953] 2 All ER 604.

(5) Bosch v The Perpetual Trustee Co. Ltd [1938] AC 463, [1938] 2 All ER 14.

(6) In re Borthwick [1949] 1 All ER 472.

(7) In re Joslin [1941] 1 All ER 302.

(8) In re Simson [1949] 2 All ER 826.

(9) In re Andrews [1955] 3 All ER 248.

(10) In re Franks [1947] 2 All ER 638.

(11) Dun v Dun [1959] 2 All ER 134, [1959] AC 272.

Statutes construed:
Inheritance (Family Provision) Act (1938), ss. 1 (1), 1 (2), 1 (6), 1 (7).
Dare, Q C, for the appellant
Smith, Q C, Simkin, Weed, for the respondents
Judgment
 Charles J: This is an appeal in respect of an order of Dennison, J, dismissing an application
by the appellant under the Inheritance (Family Provision) Act, 1938, for reasonable
provision for her maintenance to be made out of the nett estate of Sidney Diamond
deceased.
The appellant is the widow of Sidney Diamond who died on the 22nd December, 1960,
leaving a will dated the 1st December, 1960. Probate of that will was granted by the High
Court of Northern Rhodesia to the first respondent, the Standard Bank of South Africa
Limited, as executor on the 1st February, 1961. By the will the deceased bequeathed to
the appellant a legacy of £1,000 free of duty and, until her death or remarriage, an annuity
of £1,000, free of duty. He also bequeathed legacies, some more and others less than
£1,000, to sisters, nieces, charities and employees, and two annuities, each less than
£1,000, to his mother and her companions. One of the two annuities has now ceased. The
will provided for the residuary estate being held upon trust for the second, third, fourth
and fifth respondents as tenants in common in equal shares, subject to conditions as to
vesting, which need not be mentioned here. The second and third respondents are the
deceased's daughter and son respectively by the appellant, and the fourth and fifth
respondents are the deceased's brother and nephew respectively. The nett value of the
deceased's estate to meet the legacies, annuities and residuary bequest is approximately
£800,000.
Section 1 of the Inheritance (Family Provision) Act, 1938 (1 & 2 Geo. VI, c. 45), which
was applied to Northern Rhodesia by the Imperial Acts Extension Ordinance (Cap. 27) and
under which the appellant's application was made provides, so far as relevant here, as
follows:
' (1) Where, after the commencement of this Act, a person dies domiciled in England leaving -

(a) a wife . . .
then, if the court on application by or on behalf of any such wife . . . (in this Act referred to as a "dependant" of the
restator) is of the opinion that the will does not make reasonable provision for the maintenance of that dependant,
the court may order that such reasonable provision as the court thinks fit shall, subject to such conditions or
restrictions, if any, as the court may impose, be made out of the testator's nett estate for the maintenance of
that dependant.

CHARLES J
(2) The provision for maintenance to be made by an order shall, subject to the provisions of sub-section (4) of
this section, be by way of periodical payments of income and the order shall provide for their termination not
later than -
(a) in the case of a wife . . .her remarriage . . .or, in any case . . . her death.

(6) The court shall, on any application made under this Act, have regard to any past, present or future capital or income
from any source of the dependant of the testator to whom the application relates, to the conduct of that
dependant in relation to the testator and otherwise, and to any other matter or thing which in the circumstances
of the case the court may consider relevant or material in relation to that dependant, to the beneficiaries under
the will, or otherwise.

(7) The court shall also, on any such application, have regard to the testator's reasons, so far as ascertainable, for
making the dispositions made by his will, or for not making any provision or any further provision, as the case
may be, for a dependant, and the court may accept such evidence of those reasons as it considers sufficient
including any statements in writing signed by the testator and dated, so, however, that in estimating the weight,
if any, to be attached to any such statement the court shall have regard to all the circumstances from which any
inference can reasonably be drawn as to the accuracy or otherwise of the statement.'

The reference to England in subsection (1) is to be read as a reference to Zambia, for the
purpose of the application of the Act here. (High Court Ordinance, s. 12.)
The following facts were found by the learned judge, or appear as undisputed from the
evidence: the appellant and deceased were married in Johannesburg, South Africa, on the
17th June, 1939. The appellant was then twenty - five years of age, and the deceased was
then thirty - eight years of age. Two children were born of the marriage: a daughter on
the 22nd October, 1942, and a son on the 9th January, 1947. They are the second and
third respondents respectively. The appellant and deceased lived together until 1951 or
1952, and during that period they moved to Northern Rhodesia and the appellant there
helped the deceased in his business from which his fortune was made. The parties became
domiciled in Northern Rhodesia. In 1951 or 1952 the appellant and deceased became
 estranged and they separated, never to live together again. On the 14th January, 1955,
the appellant instituted divorce proceedings in the High Court of Northern Rhodesia against
the deceased on the ground of cruelty. Those proceedings were not prosecuted but, under
them, the appellant claimed alimony pending suit against the deceased, and the parties
agreed, in respect of that claim, that the deceased was to pay £150 per month to the
appellant, the appellant was to have free occupation of the flat in which she was living,
and the deceased was to pay the children's school fees and expenses. That agreement
was observed until the deceased's death. In addition the deceased paid various sums for
and on behalf of the appellant for household, labour, holiday and other expenses until his
death. It was agreed by counsel that the total value of the benefits which the appellant
received under the agreement, and as a result of additional payments, was between
£2,100 and £2,250 per annum. At the time of making his will in 1960 the deceased handed
a letter to a friend, who was also his bank manager, saying: 'If it is ever necessary, this
will explain the provision I have made for my wife in the will'. The letter had been written
over nine years previously, and bore the date 25th February, 1951. It had been attached
to a previous will which had been made at about that date and which later had been
destroyed. The letter read:

' Gentlemen, should any dispute as to the allowance left in my Will to my wife Margaret Diamond. I have left her
far more than she deserves.
She has from time to time been unfaithful, having various so called lovers, we have had from time to time many
disputes over same, and it has been I may say the only black spot in my happy and successful career.
I feel that she would have left me a long time ago, if it was not for my money, as she often told me. Mostly for
the sake of my children I am tolerating her in my house.'

The application to the High Court was not opposed by the two children.
The learned trial judge's reasons for dismissing it may be summarised as follows: The
authorities, particularly Re Pugh, 1943, 2 All ER 361, and Re Inns, 1947, 2 All ER 308,
show that the jurisdiction under the Act only arises if the court is satisfied by the evidence
before it, and after putting itself in the position of the testator, that the provision made
for his wife by the testator in his will was unreasonable or unwarranted. The provision
which the testator had made for the appellant was not shown to have been unreasonable,
having regard to the deceased having probably seen the appellant as a wife who had been
a wife in name only since 1951, who had not lived with him since that date, who had
instituted a divorce suit against him but had not pursued it, who was content to remain
on the alimony rate which she had agreed to accept, and whose possible expenses in
connection with the children would cease when the estate was distributed; and the
deceased having obviously made his will with a sense of generosity and responsibility as
shown by his other dispositions in it.
The appeal has been brought on several grounds, some of which follow the all too common
practice of criticising passages taken out of their context from the judgment. The
substantial grounds are:
(a) The trial judge failed to apply the proper principles of law, particularly having regard to the
size of the nett estate and to the appellant having been receiving from the deceased until
the time of his death maintenance which was approximately double in amount that of the
provision which he made in the will.

(b) The trial judge made no findings as to the truth of the allegations made by the deceased in
the letter explaining the reasons for not having made greater provision for the appellant,
and failed to consider the reasons for the break - up of the marriage when the weight of
evidence pointed to the appellant as the innocent party.

(c) The trial judge failed to recognise the undisputed fact that the appellant had assisted the
deceased in his business and had thereby contributed to the amassing of a fortune.

(d) The trial judge overlooked the Act that under the agreement for maintenance, it was the
deceased, and not the appellant, who had to pay the children's school fees and expenses.
Consequently, the death of the deceased and the children's entitlement under the will did
not alter the appellant's position in respect of financial responsibility for the children.
[1] The Inheritance (Family Provision) Act, 1938 (hereinafter referred to as 'the Act'), was
a departure from the recognition which English law had come to give, at least in the
nineteenth century, to testators having an unfettered right of disposition over their own
property. The departure is a limited one as it only confers on the court a jurisdiction to
depart from the dispositions of a testator by providing reasonable provision for certain of
his dependants if it is of the opinion that he had not done so himself. The principle of
departure was not new to the Commonwealth, however, as at least as early as 1908 the
New Zealand Parliament had provided for judicial interference with the dispositions of a
testator who had left a dependant without 'adequate maintenance for his proper support',
and similar provision had also been made in the Australian States and certain Canadian
Provinces some years before 1938. The change in the wording of the English Act from the
wording in the dominion legislation as to the basis of jurisdiction suggests that a different
basis was intended to be applied under the English Act. If the change has any real
significance, however, it can only be that a more extensive jurisdiction is conferred by the
English Act, [2] as a failure to provide reasonable maintenance must mean at least a
failure to provide adequate maintenance for proper support. (Cf. Halsbury, 3rd ed, vol.
16, at 460.)
Although section 1 of the Act is in terms which appear to vest a court called upon to deal
with an application under it with a discretion, it does not really do so. The court's
jurisdiction to make reasonable provision for the maintenance of a dependant only arises
if it is of the opinion, that is if it is satisfied, that such provision has not been made by the
testator. If it is satisfied as to that, the court then is bound, in my opinion, to make such
provision or further provision as appears to it to be reasonable, notwithstanding the use
of the permissive word 'may'. It would be contrary to the manifest object of the Legislature
to construe the word 'may' literally, so as to enable the court to find that reasonable
provision had not been made by the testator and then to refuse to correct the discrepancy.
The court may, of course, consider that the testator had good reason for not making
provision or greater provision for a dependant but that is a consideration relating to the
question whether he had made reasonable provision, and not to the question whether a
failure to make reasonable provision should be corrected by the court.
[3] It follows that, if there is a distinction between appeals in respect of discretionary
judgments or orders and appeals in respect of non-discretionary judgments or orders, the
concern of an appellate court on an appeal relating to an order under the Act is that which
arises on appeals in respect of any non-discretionary judgment or order. That concern is
whether the judgment or order of the court below was wrong in principle or application of
the relevant law, whether its findings of primary facts were supported by the evidence and
by a proper approach to the evidence, and whether its conclusions from the primary facts
were correct. It may be noted in passing that if there is a distinction between the two
classes of approach it is not as to the concern of the appellate court but only in the scope
afforded to the appellate court to manifest its concern: with either class the appellate court
will allow the appeal if it is satisfied that the trial judge was wrong. (See Ward v
James, 1965, 1 All ER 56 (3), at 570 per Lord Denning, M.R pro Cur.)
I turn now to consider section 1 of the Act both with regard to its wording and to the
authorities relating to it. As I can see little, if any, practical difference between 'reasonable
provision for maintenance' and 'adequate maintenance for proper support' - except that
the former may be a wider concept than the latter - dominion authorities are also
pertinent.
[4] It is inherent in the term 'reasonable' that its assessment should be in accordance with
objective, and not subjective, tests. Hence, whether a testator has or has not made
reasonable provision for a dependant does not depend upon whether or not he had reasons
which appeared to him to be valid for not providing for the dependant otherwise than he
did. The initial question is whether or not the relevant circumstances before the court show
that the testator acted towards the dependant in a way which would be condemned by
any reasonable testator faced with the same circumstances: a reasonable testator being
one whose reasonableness embraces a sense of justice and obligation, untinged with
affectionate or vicious feeling, towards his dependants, in short the 'gravitas' of a
Roman pater familae. (See Re Pugh 1943, 2 All ER 361; Re Inns, 1947, 2 All ER 308; Re
 Lowell, 1953, 2 All ER 604; Bosch v The Perpetual Trustee Co. Ltd. 1938, 2 All ER 14 at
20 - 2.)

CHARLES J
The section either expressly or impliedly prescribes certain matters which have to be taken
into account as relevant circumstances in determining the reasonableness of the testator's
provisions, namely -
(a) the size of the nett estate; (subsection (3); Re Borthwick, 1949, 1 All ER 472);

(b) the past, present and future capital and income of the claimant dependant from any source
(subsection (6));

(c) the conduct of the claimant dependant in relation to the deceased (subsection (6));

(d) the deceased's reasons for the manner in which he has disposed of his property, so far as
these reasons can be ascertained (subsection (7)). As jurisdiction has to be determined
objectively, the validity of those reasons has also to be determined objectively with regard
to them being factual or imaginary, or of a normal person or of a person with an aversion
or some other mental peculiarity or idiosyncrasy, and the like.

The section then provides, by subsection (6), that any other relevant or material
circumstance is to be taken into account. The following have been held to be relevant
circumstances or factors which have to be taken into account in determining whether the
provision made by the testator, or his failure to make any provision, for a dependant was
reasonable:
(i) The legal claims of the claimant dependant on the testator for maintenance. (Re Joslin, 1941,
1 All ER 302; Re Simson, 1949, 2 All ER 826 at p. 827; Re Andrews, 1955, 3 All ER
248; Bosch v The Perpetual Trustee Co. Ltd sup.)

(ii) The condition in life and standard of living of the claimant dependant and the testator
respectively at the time of the latter's death. (Re Borthwick, sup.; Bosch v The Perpetual
Trustee Co. Ltd sup.)

(iii) The number of other dependants of the testator and their respective legal and moral claims
upon him and the nature and extent of those claims. (Cases cited in (i) above.)

(iv) Whether or not the claimant dependant's claim came into existence without the testator
having had the opportunity to alter his will in the dependant's favour. (Re Franks, 1947,
2 All ER 638.)

(v) The nature and extent of the legal and moral claims of non-dependants who have benefited
under the testator's will to such benefits. (Cases cited in (i) above.)

(vi) Changes in the value of money and rates of interest which have occurred or are likely to
occur since the death of the testator and which a reasonable testator would have foreseen
at that time. (Re Howell, sup., Bosch v The Perpetual Trustee Co. Ltd sup.; Dun v Dun and
Another, 1959, 2 All ER 134.)

CHARLES J
With all respect to the learned judge, it appears to me that he really approached the
question whether the deceased had made reasonable provision for the appellant's
maintenance subjectively by endeavouring to seek the answer through the eyes of the
deceased as an apparently reasonable man who recognised that he owed some obligation
to his wife, notwithstanding that she was estranged from him and that he regarded her as
having been unfaithful. In adopting that approach the learned judge rightly recognised
that the deceased's allegations had not been proved, and that of necessity they could not
be proved, but he failed to take into account a significant feature of the letter which the
deceased left behind him That feature is that the letter reveals the deceased as not being
a reasonable man in his attitude to the appellant, since it shows him as a man who was
prepared to smear the appellant by repeating after his death allegations which either he
 was unable or unwilling to prove against her in his lifetime and which would be difficult, at
least, to prove against her after his death.
The learned judge's approach also seems to have led him into overlooking the following
factors which should have been considered:
(a) As the causes of the estrangement between the appellant and deceased had not been proved,
all that the court could recognise was the bare fact of the estrangement itself.

(b) The size of the nett estate, £800,000 approximately, and the size of the residuary estate,
approximately £780,000, half of which was bequeathed to a brother and nephew equally.

(c) A husband with an estate of that size may be expected to maintain his wife, who has not
been proved to have been guilty of a matrimonial wrong, at a higher standard of living
than that represented either by the allowance which the deceased had made in his lifetime
or by the allowance which he had made by his will. Against that, regard also had to be
had, of course, to the fact that the appellant did not take any steps or any effective steps
to have her maintenance increased during the deceased's lifetime. Even so, that fact did
not warrant the appellant's maintenance from the large estate, and consequently her
standard of living, being reduced by approximately one - half under the will.

(d) The estrangement between the appellant and the deceased did not destroy the moral
obligation under which the latter was to the former for such assistance as she had rendered
in laying the foundation of his wealth.

(e) The appellant's pecuniary needs are likely to become greater with age and failing health, and
she should not be left to seek assistance from the children, who may be expected to
acquire other obligations, both legal and moral, with the years.

CHARLES J
(f) It is a notorious fact, and therefore a matter of judicial knowledge, that the cost of living has
continued to rise since the 1939 - 45 war and the value of money consequently to decline.
That fact must have been known to the deceased, as a successful businessman, both at
the time of making his will and at the time of his death.

In my opinion, any reasonable testator who desired to be just, but neither sentimental nor
vindictive, to an estranged wife, would have considered greater provision necessary out
of such an estate as this for the proper maintenance and support of the appellant than
that made by the deceased. The minimum provision which it appears to me that such a
testator would have allowed in all the circumstances, particularly having regard to the
future, is an income of £3,000. As the appellant has received a legacy of £1,000, which if
invested at 5% would yield an income of £50 per annum, and an annuity of £1,000, she
should receive an additional £1,950 per year.
I would allow this appeal, therefore, by setting aside the order of Dennison, J, and
substituting for it an order to the following effect:
(a) That further provision for the maintenance of the appellant be made out of the nett estate
of the deceased, such further provision to be in the sum of £1,950 per annum.

(b) That effect be given to the order for further provision as if the bequest of the annuity to the
appellant under clause 6 (a) of the deceased's will were varied by substituting the words
'Two thousand nine hundred and fifty pounds' for the words 'One thousand pounds'
therein, and that the said will in all respects and for all purposes be construed and read
accordingly.

(c) That the costs of all parties on this appeal and in the court below be taxed on the basis of
solicitor and client and then be paid out of the estate.
* "restator " should read "testator"

Judgment
Blagden CJ and Pickett J concurred.
Appeal allowed