Dun v Dun [1957] HCA 91

Dun v Dun [1957] HCA 91

The proper test is whether, at the date of death, the testator made adequate provision for the applicant's proper maintenance. Subsequent changes in circumstance, such as the increase in the estate value or decrease in the value of money, are relevant only as evidentiary facts suggesting what might have been anticipated as at the date of death. On this basis, the provision made by the testator for the respondent was not inadequate at the date of death, and thus, the appeal succeeds and the order below is set aside.

Parties
Appellants: Dun and Another; Respondent: Eleanor Jessie Dun
Jurisdiction
Australia
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court of New South Wales
Outcome
Appeal allowed. Order of Supreme Court discharged. Respondent's application dismissed. Costs of all parties to be paid out of the estate.
Legal Topics
Testator's Family Maintenance, Extension of Time for Application, Adequacy of Provision for Maintenance, Application of Statutory Test
Succession Law Testator's Family Maintenance Extension of Time for Application Adequacy of Provision for Maintenance Application of Statutory Test

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Parties

Dun and Another

Appellants

Eleanor Jessie Dun

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the adequacy of provision for a widow should be determined as at the date of the testator's death or as at the date of application under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1954 (NSW)
  2. 2 Whether subsequent events, including increase in estate value and decline in applicant's finances, may be considered in determining eligibility and quantum

Ratio Decidendi

The proper test is whether, at the date of death, the testator made adequate provision for the applicant's proper maintenance. Subsequent changes in circumstance, such as the increase in the estate value or decrease in the value of money, are relevant only as evidentiary facts suggesting what might have been anticipated as at the date of death. On this basis, the provision made by the testator for the respondent was not inadequate at the date of death, and thus, the appeal succeeds and the order below is set aside.

Court Disposition

Appeal allowed. Order of Supreme Court discharged. Respondent's application dismissed. Costs of all parties to be paid out of the estate.

Orders

  • Order of Supreme Court of New South Wales discharged.
  • Respondent's application for provision dismissed.