Fox v Burvill

The appellant, a divorced former wife of the testator, sought maintenance from his estate under the *Testator's Family Maintenance Act 1939-1944* (W.A.). She claimed to be a "widow" as defined by section 2 of the Act, which includes "any woman who has been divorced by or from her husband and who at the date of death of such husband was receiving or entitled to receive permanent maintenance from such husband by order of the court." The respondents were the executors of the testator's estate and beneficiaries.

The central legal issue was whether the appellant qualified as a "widow" under the extended definition in section 2 of the Act. This required the court to determine if, at the date of the testator's death, she was receiving or entitled to receive permanent maintenance from him *by order of the court* and *from such husband*. The court considered the nature of the maintenance provisions made for the appellant during the testator's lifetime, which arose from a divorce decree nisi that incorporated an indenture securing payments through a trust of shares.

The court reasoned that for a divorced woman to fall within the extended definition of "widow" under section 2, her right to maintenance payments must subsist by the direct force of a court order imposing an obligation on the husband. In this case, the payments the appellant received or was entitled to receive were not directly from the testator but from a trustee under a deed, and they were received by virtue of that deed, not directly by force of a court order. While the divorce decree nisi ordered the testator to make provisions as set out in the indenture, the court found that the payments were ultimately derived from the trust established by the deed, not directly from the husband under a court order. Furthermore, the court distinguished between maintenance orders that cease upon a husband's death and those that are secured to continue, suggesting the definition in section 2 was intended for the former.

Consequently, the appeal was dismissed. The court ordered that the costs of all parties appearing on the appeal be paid out of the testator's estate.