Dun v Dun [1957] HCA 91

Dun v Dun [1957] HCA 91

The test of adequacy for provision under the Testator's Family Maintenance and Guardianship of Infants Act is to be applied as at the date of the testator's death, considering all contingencies that might reasonably have been foreseen by the testator. The subsequent increase in value of the estate or deterioration in the applicant's financial position cannot alone justify an order unless inadequacy is established as at the testator's death.

Jurisdiction
Australia
Procedural Posture
Appeal / Judgment After Appeal
Outcome
Appeal allowed
Legal Topics
["testator's Family Maintenance" 'extension of Time for Estate Applications' 'adequate Provision for Maintenance']
['succession Law'] ["testator's Family Maintenance" 'extension of Time for Estate Applications' 'adequate Provision for Maintenance']

Case Brief

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Procedural Posture

Appeal / Judgment After Appeal

Legal Issues

  1. 1 ['Whether the respondent widow was left without adequate provision for her proper maintenance under the will and codicil of Thomas Fitzgerald Dun' "Whether the crucial date for determining adequacy of provision under the Act is the date of the testator's death or the date the application is heard" "Whether the Court should extend the time for making an application under s. 5 of the Testator's Family Maintenance and Guardianship of Infants Act"]

Ratio Decidendi

The test of adequacy for provision under the Testator's Family Maintenance and Guardianship of Infants Act is to be applied as at the date of the testator's death, considering all contingencies that might reasonably have been foreseen by the testator. The subsequent increase in value of the estate or deterioration in the applicant's financial position cannot alone justify an order unless inadequacy is established as at the testator's death.

Court Disposition

Appeal allowed

Orders

  • ['Order of the Supreme Court of New South Wales discharged' "Respondent's application to the Supreme Court of New South Wales dismissed" 'Costs of the appellant executors and of the respondent of and incidental to all proceedings in the Supreme Court and of this appeal to be taxed as between solicitor and client and...