Dun v Dun - [1959] UKPCHCA 2

Testator's Family Maintenance-Application for increased provision-Date at which

adequacy of provision made to be determined-Date of death-Not date of appli- cation-Matters to be considered-Testator's Family Maintenance and Guardian- ship of Infants Act 1916-1954 (N.S.W.), 8. 3.

In applications brought under 8. 3 of the Testator's Family Maintenance and Guardianship of Infants Act 1916-1954 (N.S.W.) the question whether the applicant is left without adequate provision is to be determined upon the facts as they existed at the date of death of the testator and not as they exist on the hearing of the application. In determining such question the court should have regard not only to events which had already occurred but also to such contingencies as ought to have been foreseen by the testator up to the time of his death as likely to affect the circumstances of the applicant.

Decision of the High Court: Dun v. Dun (1957) 99 C.L.R. 325, affirmed. Coates v. National Trustees Executors and Agency Co. Ltd. (1956) 95 C.L.R. 494, approved Re R. A. Forsaith (Dec'd.) (1926) 26 S.R. (N.S.W.) 613; 43 W.N. 171, disapproved.

APPEAL from the High Court of Australia.

This was an appeal by special leave from the judgment of the High Court of Australia in Dun v. Dun 1.

Gordon Wallace Q.C., and Anthony Cripps Q.C., for the appellant. K.S. Jacobs Q.C., and D. E. Horton, for the respondents. Their Lordships took time to consider the advice they would tender to Her Majesty.

1(1957) 99 C.L.R. 325.

100 CLR 362

LORD COHEN delivered the judgment of their Lordships as follows :-

This appeal raises a short but important point under a New South Wales statute, the Testator's Family Maintenance and Guardianship of Infants Act 1916-1954. This Act is one of a series of similar, though not identical, Acts which were introduced in New Zealand and in each of the Australian States to enable the court to modify the provisions of the will of a testator who in the opinion of the court had not made adequate provision for the maintenance, education or advancement in life of his or her widow, husband or children by ordering such provision for that purpose as the court might think fit. The question which has now to be decided is whether upon an application under the Act by or on behalf of a dependant of a testator the court, in deciding on the adequacy of the provision, should have regard to the facts as they existed at the date of the application or to the facts as they existed at the date of the testator's death. It was not disputed that if the latter were the correct date the courts should take into account not only events which had already occurred, but also such happenings as the testator might reasonably be expected to foresee immediately before he died.

Before going into the facts of the case it will be convenient to consider the New South Wales statutes which affect the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dun v Dun

Details

AGLC: Dun v Dun [1959] UKPCHCA 2
Case: [1959] UKPCHCA 2
Decision Date: 7 April 1959

CaseChat Overview and Summary

This case involved an appeal from the High Court of Australia in Dun v. Dun, concerning the interpretation of the Testator's Family Maintenance and Guardianship of Infants Act 1916-1954 (N.S.W.) in relation to the adequacy of provision made for a dependant of a deceased testator. The central legal issue was the date at which the adequacy of the provision made by the testator should be determined: whether it should be assessed at the time of the testator's death or at the time of the application for increased provision.

The court's reasoning centered on interpreting the statute and understanding the intention behind it. The House of Lords, after considering the arguments and the precedents, concluded that the correct date for determining the adequacy of the provision was the date of the testator's death. They rejected the argument that the date of the application should be the material date, emphasizing that the intention of the legislation was to enable the court to vary the provisions of a will in cases where it was satisfied that the testator had not made proper provisions for a dependant. The court found that judging the testator by the position at the time of the application, rather than at the time of death, would be contrary to this intention.

Moreover, the House of Lords held that the testator should be presumed to have taken into account contingent events that he might reasonably have foreseen at the time of his death. They concluded that in this particular case, the testator could not have reasonably foreseen the vast increase in the value of his estate, and therefore, the provision made for the dependant was not inadequate.

Ultimately, the House of Lords dismissed the appeal and advised Her Majesty that the appeal should be dismissed, with costs to be paid and retained out of the estate of the testator.

Orders