Klemke v Lustig

The case of Klemke v Lustig involved the estate of a deceased who left behind a will that made inadequate provision for his daughter. The daughter, along with the executors, brought a case to the Supreme Court of Victoria seeking an adjustment to the distribution of the estate to provide for her maintenance. The dispute centred on whether certain property, previously owned by the deceased’s second wife, was part of the estate and thus available for distribution. Additionally, the validity of a clause in the will that appeared to delegate testamentary power was contested.

The court had to determine if the deceased had an acknowledged moral responsibility to provide for his daughter, which would warrant a review of the will's provisions. Furthermore, the court had to decide whether the estate included property previously owned by the deceased's second wife and whether the will contained an invalid delegation of testamentary power. The court referred to the Administration and Probate Act 1958 (Vic), section 91, and the precedent set by Tatham v Huxtable (1950) 81 CLR 639 to assist in its deliberations.

The court found that the deceased indeed had a moral responsibility to provide for his daughter, which necessitated a review of the estate's distribution. It was held that the property previously owned by the deceased's second wife was indeed part of the estate. However, the clause in the will that appeared to delegate testamentary power was deemed invalid. Based on these findings, the court ordered an adjustment to the estate distribution to provide adequate maintenance for the daughter.