CLAIM AGAINST ESTATE

Press, Volume XC, Issue 27306, 24 March 1954, Page 12

CLAIM AGAINST ESTATE

DISINHERITED SON’S CHILDREN

ACTION TAKEN TO APPEAL COURT (New Zealand Press Association) WELLINGTON, March 23.

The principles involved in a claim by grandchildren under the Family Protection Act, 1903, are being considered in the Court of Appeal fejday. The appeal being heard is against a Supreme Court decision that the children of a disinherited son, since dead, should be apportioned a share of a substantial estate, all of which was left to another son of the testator. Maurice Vyvyan Richard Stirling Maxwell, a Nelson agent, died in August, 1952, -leaving assets valued for death duty purposes at £17,173 13s 3d. By his will, made on July 4, 1945, the testator left the whole of his estate to his son, Rupert Vyvyan Maxwell, and said: ‘‘l declare that I have made no provision for my son, Maurice Stirling Maxwell, on account of his unfilial attitude’towards me following the death of my late wife.” Maurice Stirling Maxwell died in January, 1951, leaving a widow and five children. The five children applied to the Supreme Court at Nelson through their mother for provision out of the estate.

Mr Justice Turner held that four of the children were in poor circumstances, and the testator was under a moral duty to provide for them. Be said that if the children’s father were guilty of conduct to disentitle him to provision from his father’s estate (which fact he did not decide).,.such misconduct would not disentitle his children. An order was accordingly made that one-third of the estate be held for the four grandchildren. The residuary beneficiary, Rupert Vyvyan Maxwell, has appealed against this judgment, alleging that a testator is under little moral duty to provide for grandchildren, and that if a testator is entitled to disinherit a son he is likewise entitled to disinherit that son s children. The Court consists of Mr Justice Fair, Mr Justice Stanton, and Mr Justice McGregor. Mr W. V. R. Fletcher, of Nelson, and Mr A. E. Cresswell, of Wellington, are appearing for the 3P' pellant. Mr W. E. Leicester, of Web lington, and Mr E. Crutchley, of N®-’ son, are appearing for the respondent