MAKING OF WILLS.

Auckland Star, 2 September 1933, Page 13

MAKING OF WILLS.

FAMILY PROTECTION. NEW ZEALAND'S LEAD. POWERS OF THE COURT. An address on the administration of Part 11. of the Family Protection Act, IDOB, wae given by Mr. W. E. Leicester at a mooting of the Wellington Accountant Students' Society. He said it was a matter worthy of notice that the statutes relating to family maintenance and authorising the modification by the Courts of the wills of testators where adequate maintenance for wife, husband or children had not been made had thenorigin in New Zealand, and had since been adopted in the Australian States. They constituted one of a number of instances in which in social legislation New Zealand had adopted a strong and novel standpoint. Tho idea of interference by legislation or by judicial authority with the wishes of the testator seemed still to be regarded as abhorrent by many of the EiSglifih die-hards, and those present who were familiar with the conservative worship of property and possession underlying that clear picture of English social life that was given by John Galsworthy in his "Forsyte Saga" 'ould appreciate the reason why proposed legislation in England similar to that in tho Dominions on the matter had never been successful. In certain Continental systems of jurisprudence the principles underlying the original New Zealand A(<t were partially demonstrated by limitations imposed on the powers of the testator 1 and ordering fixed proportions of his estate to pass in certain ways. General Principles.

Tho first of the sub-sections in section 33 of the Family Protection Act had given rise to an enormous amount of litigation, Mr. Leicester continued. It read as follows: —"If any person (hereinafter called the testator) dies leading a will, and without making therein adequate provision for tho proper maintenance and support of the testator's wife, husband or children, tho Court may at its. discretion, on application by or on behalf of the said wife, husband or children, order that such provision as the Court thinks fit shall be made out of the estate of ttie testator for such wife, husband or children." Mr. Leicester went on to refer to the leading case on the subject, and consider the rights of the various classes that constituted the claimants, namely, widows, daughters, sons, illegitimate < children and grandchildren and widowers. He referred to the supremacy of a widow's claim and the distinction that was clearly made in reported casee between the claim by a widow and one by adult children. The Court had defined the proper maintenance of a widow as that kind of maintenance to which she had been accustomed during the life of her husband. The tendency in the case of daughters had beon for the Court to look favourably ufton applications made by unmarried daughters, eepecially those who had sacrificed themselves in looking after the interests of their parents, and applications made by married daughters in poor circumstances. In the case of Allardiee y. Allardice, provision was refused to able-bodied sons, and this decision had been followed in other cases in New Zealand and New South Wales. A Classic Will. Mr. Leicester quoted passages from a judgment of the Chief Justice in which, his Honor had stated that the Act .was not a Statute to empower the Court to make a new will for the testator, and that it would be difficult indeed for the Court to rival the construction of such wille as that of the Earl of Dorset, a former Lord Treasurer, who. in bequeathing a trifling gift to his wife, said: — "I bequeath to Cecilie, Countess of Dorset, my most virtuous, faithful, and dearly loved wife, not as any recompense of her infinite merit towards me, who, for incomparable love, zeal, and hearty affection ever showed tinto me and for those her so rare, reverent, and many virtues of charity, modesty, fidelity, humility, secrecy, wisdom, patience, and a mind replete with all piety and goodness, which evermore shall and do abound in her, deserveth to be honoured, loved, and esteemed above all transitory wealth and treasure of this world, and, therefore, by no price of earthly riches can by me be valued, recompensed, or requited; to her, therefore, my most virtuous, faithful, and entirely-loved wife —not, as I say, as a recompense, but as a true token and testimony of my unspeakable love, affection, estimation, and reverence, long since fixed and settled in my heart and soul towards her, I give," etc. " Poisonous Tongues." Or of an old black-letter Serjeant, William Hall, whose will, after some bequests went on:— "I give to that vile wretch Samuel Hall (his nephew), who I admitted of the Temple, many years since, but he sold his gown, and in Steven years I could never get him to church but once, and twice he assaulted me, and at the time he had certainly killed me if by God's providence I had not by a maidservant been thrown against a great fire, the sum of ten shillings to be paid to him every Monday upon request, and I wish that the first food he takes after my death will choke him." And finally this one: — "As for thirty years my wife has never lost an opportunity of lashing me with her tongue," ran a codicil in the will of a Liverpool merchant of a generation ago, "and making me the butt of her vulgar wit, I bequeath to her an annuity of £300, as long as she lives under the same roof with her ■mother, whose tongue is as poisonous ae her own, and.whom she hates ns cordially as she does me; and so long as mother and daughter together visit my grave on tbe first day of each month, and°in presence of my solicitor, or his deputy, express regret for the unhappiness they have caused me."