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NOVEL LAW CASE

CLAIM BY ILLEGITIMATE DAUGHTER NO PROVISION IN FATHER’S WILL What was believed to be the first case of its kind brought before the Supreme Court pertaining to the rights of illegitimate children, following the amendment to the Family Protection Act of 1936. was heard by Mr Justice Northcroft in the Supreme Court in Christchurch yesterday. The plaintiff was a schoolgirl of 13. No provision whatsoever had been made for her from the estate of her deceased father, against whom her mother had obtained an affiliation order by consent on December 8. 1930. The child had been born in the previous October. The father, who left an estate valued at £2194 9s 3d, had willed it to his two brothers and sister. The last-named was 83 years old and bedridden, the Court was Informed by Mr W. R. Lascelles, who appeared for the child. One brother was 78 and the other aged 75. Mr N. S. Bowie appeared for one of the brothers in his capacity as trustee of the estate. The latter, said counsel, would submit to the Court’s decision. Mr T, A. Gresson represented the two other beneficiaries. , , . ~ His Honour, in an oral judgment, said that each case had t,o be determined on the facts, at\d it was not his intention to put forward any particular rule or attempt to suggest what was in the mind of the Legislature when the amendment to the act was sanctioned. The fact that the child had been entirely in the possession df the mother, he continued, was not the latter’s fault. The fact remained that she was her father’s child, and must be so regarded. But, at the same time, cognisance had to be taken by the Court of the testator’s desire to assist his aged and needy sister and brothers. "There was no provision for the daughter,” said Mr Justice Northcroft. ‘and, therein, he failed in his duty.” The sister and brothers, he added, were elderly people: they might live for only a short tune, but on the other hand, they might live for a considerable period. Obviously, the testator's duty to his daughter was much higher, and it was only right that provision should be made for her to the fullest extent that the estate permitted. It was not his intention to give capital sums - to the beneficiaries, and he directed that each of the defendants should receive £32 per annum from the estates income, or if that were insufficient, from capital. The estate, however, would be held for the daughter by the trustee. His Honour wished to make it clear that the trustee was not required to hold the estate intact to ensure the payment of the annuities to the defendants. The education and maintenance of the daughter should In no sense be restrained. He is to use his discretion parallel with the obligations to the defendants.” added his Honour. .. , „ When opening his case, Mr Lascelles said the application for benefit of an illegitimate child was novel as far as the Courts were concerned. But where paternity had been established, he declared, the Court had authority to make provision for puch a child. "The girl is of average intelligence, is taking a home science course at school, and sings well, though she does not claim to be a Galli-Curci, remarked counsel. The mother, he added, was unmarried, and was in a permanent position as a housekeeper, though she had no other means. Counsel went on to describe the financial standing of the beneficiaries, all of whom were in poor circumstances, he said, though one brother now had a capital of £IOOO as the result of a loan being repaid by his son. The sister, an invalid, was a widow and childless. However, no provision had been made by the testator for his illegitimate daughter, and Mr Lascelles submitted that she was entitled to succeed under the 1936 legislation. Obviously, he declared, the testator had a moral duty to his child. "In legislation of this kind we are in advance of England land certain other countries,” he remarked. “The brand of illegitimacy was not of this child's asking,” he continued. “Every child so born has to go through life with a handicap: she labours under a shadow, and I also submit that it has at least a slight effect upon the possibility of her marriage.” His Honour said that he did not propose to lay down any set principle on which the Court should act in regard to illegitimate children. “This is the case of a child in need,” he said. “The duty of the Court is to weigh up the practical Question, after hearing the facts, and avoid anything in the nature of a pronouncement pertaining to the principle. The latter is a matter for Parliament, rather than for this Court.” However, a child of 14 in humble circumstances should, in his Honour s opinion, be learning something more practical than home science; "If she were independent,” he added, “it would be commended in the highest, but surely she should be learning something more practical.” The child was not yet at the stage, replied Mr Lascelles, when her mother could gauge just what she was fitted for. It was possible that she might go into domestic service; on the other hand she might become a teacher. His Honour: I am put in the position of a father to make an economic adjustment between her and the elderly relatives. What the child Is gqlng to do in a few years will be d material factor in assisting me to arrive at a decision. Mr Lascelles suggested that a substantial portion of the estate should be set aside for the maintenance, education, and general advancement of the girl. Mr Gresson pointed out that New Zealand had not pioneered this legislation. Tasmania had made a similar provision for illegitimate children, he said, as far back as 1915. His Honour: Would it be correct to say that the problem was more pressing in Tasmania than, for example, in England? The question for the Court to decide, said Mr Gresson, was whether or not the testator had left his daughter without provision. If the Court decided in the affirmative, then it would have to consider what proper provision'should be made for her. He pointed out that the defendants had already made an offer of £SOO to her, a sum which, in regard to their own circumstances, as well as those of the child, he thought, was sufficient to meet the claim.

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https://paperspast.natlib.govt.nz/newspapers/CHP19440601.2.68

Bibliographic details

Press, Volume LXXX, Issue 24272, 1 June 1944, Page 6

Word Count
1,090

NOVEL LAW CASE Press, Volume LXXX, Issue 24272, 1 June 1944, Page 6

NOVEL LAW CASE Press, Volume LXXX, Issue 24272, 1 June 1944, Page 6

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