[1982] VR 425
DOBELL v VAN DAMME
SUPREME COURT OF VICTORIA
McGARVIE, J
21 May 1981
[1982] VR 425
Administration and Probate — Testator's family maintenance — Testator divorced — Question of maintenance for former wife reserved — Application by former
wife — Whether former wife entitled to payments of maintenance — Meaning of
"entitled" — Whether former wife a "widow" — Administration and Probate Act
1958 (No. 6191), s91.
.
S91 of the Administration and Probate Act 1958 so far as relevant provides:
"91....[W]here...any person (hereafter in this Part called "the deceased")
dies, and the distribution of his estate effected by his will...is such as not
to make adequate provision for the proper maintenance and support of the
deceased's widow widower or children the Court may, on application by or on
behalf of the said widow widower or children, order that such provision as the
Court thinks fit shall be made out of the estate of the deceased for such
widow widower or children.
"For the purposes of this section "widow" includes any former wife of the
deceased who was at the date of his death in receipt of or entitled to receive
payments of alimony or maintenance whether pursuant to an order of any court
or otherwise."
In September 1972, the testator was granted a decree nisi of dissolution of
marriage to his wife ("the former wife") which contained an order providing
for maintenance for the three children of the marriage, together with an order
providing that the question of maintenance for the former wife be reserved.
The Supreme Court of Victoria sanctioned a deed pursuant to s87(1)(k) of the
Matrimonial Causes Act 1959. Subsequently the testator died in January 1979,
at which time there existed no agreement or order for maintenance for the
former wife, nor was she in receipt of payments of maintenance.
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[1982] VR 425
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