1949 VLR 174IN RE WARNE-SMITH Supreme Court of Victoria HERRING C.J. October 15, 1948, 03 November 1948Administration and probate — Testator's family maintenance — "Children" — Retroactive operation of repeal of definition of "children" — Application by children more than six months after grant of letters of administration — Extension of time for making application — Power of Court — Administration and Probate Act 1928 (No. 3632), Part V, secs. 138, 139, 147 — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), secs. 3, 6.
Letters of administration with the will annexed were granted in respect of the estate of a testator on the 18th September, 1922. At that time his sons, being over the age of 18 years, were not competent to make an application for an order for their maintenance and support out of the testator’s estate, as the definition of children under the law then in force did not include male persons over the age of 18 years. The Administration and Probate (Testator’s Family Maintenance) Act 1937 (No. 4483) repealed this definition, and also gave the Court power to extend beyond six months from the grant of probate or letters of administration the time within which application might be made for an order that provision be made out of the testator’s estate for the maintenance and support of children of the testator. The testator’s sons applied for such an extension of time.