WIDOW’S SHARE OF ESTATE

Press, Volume LXXXIII, Issue 25284, 9 September 1947, Page 5

WIDOW’S SHARE OF ESTATE

FAMILY ARRANGEMENT NOT PROVED An application was made to Mr Justice Fleming in the Supreme Court yesterday for an order giving effect to a verbal arrangement whereby a widow was to get the income from the whole of her husband’s estate during her lifetime, and that all the capital was to go to the testator’s children on the death of the widow. The plaintiffs were James Lewis, farmer, of Arundel, and Ernest Edward Lilley, farmer, of Southbridge, trustees of the will of John Allen Lilley, contractor, of Mayfield. They were represented by Mr R. W Edgley. The defendants were Alan Arthur Reed, solicitor, ot Christchurch, William Cuthbert Nunweek, carrier, of Christchurch, and Raymond Robert Thomas, soldier, of Christchurch They were represented by Mr M J Gresson and Mr P. H. T. Alpers.

The testator; who .died on December 23, 1931, left his estate to the trustees upon trust to sell for the beneficiaries; in the meantime the widow was to be allowed to occupy the freehold property as a home for herself and the testator’s children; ope third of the real and personal property was to go to the widow and two-thirds to the testator’s children* in equal shares The estate was valued at £3llB Mr Edgley said that, some months before the testator’s death, his wife, on advice, sold the carrying business and put the proceeds on fixed deposit in her name. These deposits, totalling £2OOO, remained in her name until April, 1939, when they were transferred to the testator’s estate. From the death ot John Allen Lilley until the death of his widow in December, 1945, the children received no income from their father’s estate. The widow, who was the testator’s second wife, left £5 to each of her husband’s children and the household furniture to her stepdaughter. She left one half of the residue of her estate to an orphanage, one quarter to her sister, and one quarter to her cousin His Honour: Why was there any need of a family arrangement? It was really a concession on the, part of the family, was it not? Mr Gresson: But on consideration that the family got back the one-third of the capital which went to Mrs Lilley under her husband’s will. His Honour: Now 1 see a ray of light. 1 think we have found the nigger in the wood pile. James Lewis, m evidence, told ot the arrangements made whereby the Lilley family agreed to let their stepmother have the interest from all the money in the bank. Mrs Lilley told him that, at her death, the children would get all the money in the bank To Mr Gresson. the witness s.i»d that nothing was said by anyone as to how Mrs Lilley’s one-third share was to go back to the children.. Supporting evidence was given by Leonard Allen Lilley, Stanley Lewis Lilley, and Harold Lilley. “Rigid Proof Necessary” Mr Gresson then moved for a non-suit Whatever the alleged contract was, it was a claim against a deceased estate and subject to all the rigidity of proof necessary to such a claim It was a mere, misnomer to term it a family arrangement It was an ordinary contract, governed by the ordinary contract rules, and it could not be turned into a family arrangement merely by calling it one. The main characteristics of a family arrangement were .a settlement of family disputes or a compromise on family rights. There was no question of dispute in this case; far from it, for the Lilley family seemed to have treated their stepmother most generously There was no quid pro quo. There was no contractual obligation on Mrs Lilley to make a will giving effect to what was a loose arrangement. It was a family kindness, done by the Lilleys but they were only doing what the law would have called on them to do if the widow had made a claim on the estate

Mr Gresson submitted that the arrange--ment was not reduced to writing; it was unreasonable; the widow had no independent advice; the arrangement was for an inadequate consideration; and it was uncertain. These points, taken cumulatively. were strongly against giving effect to the arrangement. His Honour said he must find that the family arrangement was not proved ana therefore he must uphold Mr Gresson s non-suit point. The plaintiffs would be non-suited.