Dun v Dun [1957] HCA 91

acleee

5) WAR 99 C.L.R.] OF AUSTRALIA. [HIGH COURT OF AUSTRALIA.]

DUN AND ANOTHER . ? : ' ' APPELLANTS 3

'RESPONDENTS, AND

10101. Faecabilalan < c é é " & . ResPONDENT.

APPLICANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES

Vestator's Family Maintenance—Time for making application—Extension of time— H.C. or A.

Maintenance—Date as at which adequacy of provision to be determined—Date of death—Date of application—Matters to be considered—Testator's Family Maintenance and Guardianship of Infants Act 1916-1954, 88. 3, 5.

In applications brought under s. 3 of the Testator's Family Maintenance and Guardianship of Infants Act 1916-1954 the question whether the applicant is left without adequate provision is to be determined upon the facts as they existed as at the date of death of the testator. Once such question is answered in favour of the applicant the question of what order should be made is one to be decided upon the facts as they are found to exist at the time when the court is dealing with the application.

Coates v. National Trustees Executors & Agency Co. Ltd. (1956) 95 C.L.R. 494 disapproving Re R. A. Forsaith (Dec'd.) (1926) 26 S.R. (N.S.W.) 613; 43 W.N. 171, applied.

D. under the will of her husband who died in 1942 received in addition to certain specific bequests an annuity of £800 per annum and certain income tax benefits in relation to such annuity. At the time of her husband's death D. owned the matrimonial home and certain other realty. Between the years 1942 and 1955 the value of the deceased husband's estate increased greatly whilst the financial position of D. substantially deteriorated, and there was also a substantial decline in the purchasing power of money generally. Conse- quent upon the passing of the Administration of Hstates Act 1954 D. in 1955 sought and obtained from the Supreme Court of New South Wales pursuant to s. 5 (2a) of the estator's Family Maintenance and Guardianship of Infants Act 1916-1954 an order extending the time within which she might bring an application for maintenance out of her late husband's estate pursuant to 8. 3 of such Act and she duly brought such an application, 'The judge of first