Recent Judgment REMARRIED WIDOWER’S CLAIM

Press, Volume XCIX, Issue 29272, 2 August 1960, Page 20

Recent Judgment REMARRIED WIDOWER’S CLAIM

Bailey v. Public Trustee

(By a Legal Correspondent) Before the Court of Appeal, at Wellington.

In this, the first case of its kind, the Court of Appeal decided that a husband of a deceased wife could apply for further provision out of her estate, notwithstanding his having remarried before he made his application. The judgment differentiates between the making of an order giving a widow a lump sum out of her deceased husband’s estate and an order made in respect of a deceased’s wife’s estate.

This was a claim under the Family Protection Act, 1955, removed into the Court of Appeal.

The wife of the plaintiff made her will on March 15, 1940. She gave the whole of her estate to the Public Trustee upon trust, after payment of debts and testamentary expenses, for her husband, the plaintiff, for life; and afterwards for the Canterbury Society for the Prevention of Cruelty to Animals, the second defendant. The wife died on April 12, 1956, leaving a small estate, consisting of the cottage in which she and her husband lived and a small cash balance after payment of liabilities. There were no children. The husband remarried on August 30, 1956. On March 21, 1957, he commenced these proceedings for further provision, asking that, instead of the income bequeathed to hhn, he should be given the whole of his deceased wife’s estate. Counsel’s Request In ■ the Supreme Court counsel for the plaintiff requested Mr Justice McGregor to remove the matter into the Court of Appeal, in order that it could be author-i iatively decided whether a widower who had remarried had lost bis status as husband of the deceased; and whether, with such loss of status, he had lost his right to make application under the act. Section 3 of the Family Protection Act, 1955, so far as it is relevant to the present question, is as follows: ”3. An application for provision out of the estate of any deceased person may be made under this act by or on behalf of ail or any of the following persons: (a) The wife or husband of deceased. . . .” The Court of Appeal, in a judgment delivered by Mr Justice Hutchison, said that, on its reading of the statute, the Court’s view was that the status of a wife wa* fixed by her position at the moment immediately before the death of the husband, and that, being a wife then, she was a qualified applicant at any time subsequently. (In jurisdictions in which she is described as “the widow,” the position might conceivably be different.) Adequate Provision It had long been recognised in. New Zealand, their Honours said, that the time at which the position must be looked at, with a View to ascertaining whether adequate provision was or was not made for the proper maintenance and support of persons entitled to claim, was the date of the death of the deceased. Thus, the status of a wife as a possible claimant was fixed once and for all at the date of the testator’* death. The Court of Appeal held that the position in the case of a husband was the same; and, in their opinion, the remarriage of the plaintiff in this case before he made his application to the Court did not operate as a jurisdictional bar to his claim. There are two general principles, closely inter-related bearing upon applications by widows, which have recently been restated by the Court of Appeal. In one, the Court, while recognising the jurisdiction to aWard a lump sum, stressed the general practice of the Court against making awards of lump sums in favour of widows. In the other, the Court while reserving the opinion whether there was jurisdiction to make provision in favour of a widow for a longer period than Widowhood, observed that there was a defined view of the Court whereby the provision made in favour of applicant widows was limited to widowhood. Defined Principles The Court of Appeal said that either of those principle* applied with the same force to claims by husbands. In respect of such claims, they did not think it eould be sgid that there wa* any defin-

ite principle applied by the Court to the provision made to widowerhood. In the nature of things, their Honours added, there was not the same justification for confining the provision made for a surviving husband to his widowerhood as there is for limiting a surviving wife’s benefits to widowhood. A husband might well expect that, if his wife remarried, she would be supported by her second husband,' while a wife should contemplate that, if her husband remarried, he would have to support his second wife. Their Honours said that somewhat similar considerations applied to the nature of the provision to be made, it had been recognised that, in somewhat exceptional circumstances, the Court would be justified in vesting the whole of an estate in an applicant widow, usually where the estate was quite small. Exceptional What was exceptional in the case of a surviving wife was, their Honours said, more common in the case of a surviving husband. The duty of a wife to make provision for her surviving husband would normally arise in cases, of which this was one, where the parties were of straitened means, probably elderly, and where the house in which they had lived was in the wife’s name and might constitute the whole or almost the whole of the estate. Their Honours added that, in making the foregoing observations concerning the provision that might properly be made for a surviving husband, they should not be understood as expressing a view on the undecided question whether there was jurisdiction to make an award to a widow expressed to ensure for a longer period than her widowhood. Whole Of Estate For the reasons given, the Court of Appeal, adopting the view of Mr Justice McGregor in the Supreme Court, ordered that the whole of the small estate should go to the plaintiff absolutely. The Public Trustee, the trustee of the will, would have his reasonable costs in the ordinary way without an order of the Court. No order needed to be made for costs in favour of the plaintiff, for he would have the whole estate. The costs of the second defendant (the society) would consist of counsel’s fee only, fixed at 15gns. in the Supreme Court and 25gns. in the Court of Appeal, to be paid out of the estate. Counsel: For the plaintiff, Rose; for the Public Trustee, Beaton; for the Society for the Prevention of Cruelty to Animals, Hewitt Solicitors: For the plaintiff, Roy Twyneham and Son (Christchurch); for the Public Trustee, the Public Trust OflSce Solicitor (Wellington); for the society, D. J. Hewitt (Christchurch).