Dehnert v Perpetual Executors and Trustees Association of Australia Ltd [1954] HCA 47

10-1968 QgA.L4/ MP ald 159.1975 VR. ¥¢I

91 C.L.R.] OF AUSTRALIA. 1

a a

[HIGH COURT OF AUSTRALIA]

DEHNERT 5 a '4 ' é 3 d APPELLANT 3 APPLICANT,

AND

THE PERPETUAL EXECUTORS AND TRUS-

TEES ASSOCIATION OF AUSTRALIA + Responpents. LIMITED AND OTHERS RESPONDENTS,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Testator's Family Maintenance—Testator—Failure of testator to make " adequate provision for the . . . maintenance . . . of thetestator's . . . children" —Competence of applicant—Child adopted by testator—Statutory provision that adopted child to " stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock" in respect of maintenance—Costs—Separate representation on appeal of Attorney-General representing charitable beneficiaries Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483) (Vict.) -Adoption of Children Act 1928 (No. 3605) ( s. 7 (1) (2) (a).

Section 139 of the Administration and Probate Act 1928, as amended, provides that where a testator dies leaving a will and without making therein adequate provision for the proper maintenance and support of his widow,

widower, or children the court may, on application by or on his or her behalf,

order such provision as it thinks fit to be made out of the estate of the testator for such widow, widower or children. Section 7 (1) of the Adoption of Children Act 1928 provides that 'upon an adoption order being made, all rights, duties, obligations and liabilities of the parent or parents . . . of the adopted child, in relation to the future custody, maintenance and education of the adopted child . . . shall be extinguished and all such rights, duties, obliga- tions and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock, and in respect of the same matters . . . the adopted child shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock ". Section 7 (2) entitled the adopted child " to