Supreme Court Youngest Son Seeks £1500 From £10,000 Estate

Press, Volume XCIX, Issue 29251, 8 July 1960, Page 10

Supreme Court Youngest Son Seeks £1500 From £10,000 Estate

An application by Timothy Arnold Machin, aged 46. an accountant, for provision, under the Family Protection Act, from the estate of his father, William 1 Machin, a company manager, who , died in Christchurch in 1958 leav- ; ing a net estate of £lO,OOO was adjourned part-heard in the Supreme Court yesterday. Mr R. W. Edgley appeared for Timothy Machin, Mr E. B. E. Tay- : lor for William Bruce Tebbut Leete. and Agnes Machin, as trustees of the estate, named as ' first defendant, and Mr J. G. Leggat, for Agnes Machin, in her personal capacity as widow of William Machin, named as second defendant. Mr Edgley sought a lump sum of £l5OO for the plaintiff, saying . that Mrs Agnes Machin was now ' worth £lB,OOO to £20.000. Mr Leggat opposed the granting of any provision on grounds that the plaintiff was an able-bodied man who had been given a good start in life, by his father, the testator. Mr Justice Macarthur adjourned the hearing until today. Mr Leggat will conclude' his submissions and Mr Edgley has the right of reply.' Mr Edgley said that the testator died on October 7, 1958, aged 79. ; He had been twice married and both wives were still living. He ' married Mary Machin in October, • 1900, and the marriage was dis- ' solved by a decree absolute in divorce on February 3, 1941. There were five children of this ' marriage, William, now aged 58, Mary 55, Ivor 54, Muriel Joy 48 and the plaintiff. All the other 1 four were married and they had signified that they did not wish 1 to participate in the present application in any way whatsoever. j Second Marriage The testator married Agnes ' Machin, the second defendant, on July 3, 1941. The testator was then . aged 62 and Agnes Machin 23. . She had resided continuously in the Machin household since about , 1933. There were no children of , this marriage. In his last will, made on May 4, 1956, the testator left the whole of his estate to his second wife, Agnes, now aged 42, and three or four years younger than the plaintiff. The estate, after payment of death duties, etc., was worth £10,916. . Plaintiff’s son was the only male grandchild of the testator. Plaintiff married in 1937, and had a son aged 22, and a daughter aged 19. "he son was a radiographer at present in England undertaking ■ further studies. Before going to ; England last year the son lived at J plaintiff’s home but was otherwise i self-supporting. Hie daughter lived at home and ; was self-supporting. She was expected to go to England this year and the plaintiff hoped to assist her trip. The plaintiff was employed as ; a finance accountant by Foodstuffs, Ltd., in Auckland and re- , ceived £l6 4s 9d a week net. When he was aged 60 he would get £l7OO in superannuation. The plaintiff lived in. a flat at a ’ rent of £6 10s a week; his furnis ture and effects, jointly owned by himself and his wife, were worth S £1000; a car was in his wife’s name and she had an equity of £250 net. At 65, plaintiff would get £lOOO in an insurance policy •’ on himself, held in his wife’s name. Duty to Son Counsel said that' it was not suggested that the testator did not have a moral duty towards his : second wife, but it was submitted there was an adequacy in the estate to enable the testator to carry , out his moral duty towards his son, the plaintiff. The plaintiff had need of capital for a house and also to prb- . vide for the contingency of his

wife’s Hl-health. His wife eras not the . information available, the Court could infer that the testators widow,-’feta >. seoi^: wmgliM assets of £IBXIOO to £SROOO. Therefore the pnwjiudn of?lE1800 in a lump sum to the plaints would, be a reasonable amount. Counsel said that the ■‘.laintiff in his affidavits, saidJhat hS testator paid for his fees at St Andrew’s College. Plaintiff-artUi a law student, full-time, at G»n-| terbury University.fCoUgSte'iM 1933. but obtained a job iri a law office that year for 10s a week. Plaintiff was from ‘then on a part-time law student and paid his university fees. The testator had paid his fees when he was a full-time student and also given him 10s a week pocket money. - T—*« ' The plaintiff denied the assertions in the affidavits of the testator’s second; wife that the testator had paid him £1 a week pocket money /and, a- bonus each year of £2> for passing law examinations. : ' The plaintiff also denied that the testator had ever paid him £764 in moneys or securities, as alleged by the second wife. The testator had lent plaintiff £4OO on mortgage but this had been repaid in full with interest, said counsel. “From the diaries and papers of the testator it seems that he did i>lace securities and assets in the names of his children at times, but it is clear that he did so for his own purposes and retained control of the assets,” counsel said. He submitted the second wife’s assertion that the testator had given plaintiff £764 was based on very flimsy evidence—just figures on an old folder of the testator’s.

“The second Mrs Machin when the plaintiff started at University was still at school, or just leaving, and I do not think testator would have taken her into his confidence at that stage," counsel said.

“The second wife alleges that the testator was disappointed in his son (the plaintiff) in his decision to abandon the law, his thriftlessness and his failure to settle in to a profession,” counsel said.

“The testator wanted his son to be a lawyer when he was a schoolboy, but the plaintiff has never considered himself suitable for law. He has never earned a high income, never lived extravagrantly and never got heavily into debt, which is bis answer to thriftlessness.” Statement “Irrelevant”

Mr Taylor, for the first defendant, after outlining property deals in the estate, said he strongly deprecated the way in which the background of the testator and his second wife had been brought out in the affidavit of the plaintiff. The statement was unnecessary, uncalled for and irrelevant.

Mr Leggat, for the second defendant, said there had been criticism of Mrs Machin for failing to disclose her position. Mrs Machin was not seeking relief. Thus she was not a claimant and had no duly to disclose it. Hie plaintiff was the only claimant before the Court, and the Court had to decide whether or not he had made out a claim. “Mrs Machin has been frank and has said what she believes, then immediately followed with her reasons for belief in her affidavit. It is immaterial whether the Court holds her beliefs sound. They are beliefs honestly held and she should not be criticised by my learned friend,” counsel said.

Mr Leggat submitted that the position of the "able-bodied son” was, in law, the weakest of all in such applications.

The testator had given the plaintiff a good home, paid for his secondary schooling and assisted with his university studies. “The testator set the plaintiff on a good career and to a reasonable position. The plaintiff had a right to change his career but he cannot now complain if, as the result of his choice, his circumstances are not what he might have expected,” counsel submitted.

The plaintiff had entered no medical evidence in support of his depositions about his wife’s health. “The testator did help plaintiff into a home. The plaintiff left it because he chose to travel,” counsel said. The case was adjourned at this stage.