Theoret BY Her Tutor Edgar Lawrence Theoret v Theoret

Theoret by her tutor Edgar Lawrence Theoret (the applicant) appealed to the New South Wales Court of Appeal against orders made by a judge of the Supreme Court of New South Wales. The dispute concerned the applicant's entitlement to a share of the estate of her deceased father, Mr. Theoret. The applicant, who was born out of wedlock, sought to establish her status as a "child" of the deceased for the purposes of the Wills, Probate and Administration Act 1898 (NSW).

The primary legal issue before the Court of Appeal was whether the applicant, as an illegitimate child, could be considered a "child" of the deceased under the relevant legislation, thereby entitling her to a share of his estate. This involved an interpretation of the definition of "child" within the context of succession law and the historical legal treatment of illegitimate children.

The Court of Appeal considered the provisions of the Wills, Probate and Administration Act 1898 (NSW) and the common law principles governing the status of illegitimate children. It was held that the Act, in its relevant form at the time of the deceased's death, did not extend the definition of "child" to include illegitimate offspring for the purposes of intestate succession. The court reasoned that while societal views and legislative approaches to illegitimacy had evolved, the specific statutory language did not permit an interpretation that would include the applicant. The court affirmed that the common law presumption that "child" referred to legitimate children remained in force unless expressly altered by statute.

Consequently, the appeal was dismissed, and the orders of the Supreme Court were upheld. The applicant was therefore not recognised as a child of the deceased for the purposes of inheriting from his intestate estate.