Supreme Court Son Granted Increased Provision From Estate

Press, Volume CIV, Issue 30759, 25 May 1965, Page 12

Supreme Court Son Granted Increased Provision From Estate

There had been a failure on the testator’s part to provide adequately for his only son, who was grievously afflicted both mentally and physically, Mr Justice Wilson said in the Supreme Court yesterday when granting the son increased provision from the estate of the father, Richard John Belcher.

Mr J. G. Leggat acted for the son who had brought the action under the Family Protection Act.

Mr N. S. Bowie appeared for the Perpetual Trustees Estate and Agency Company, Ltd., as executor of the will. Mr B. McClelland appeared for Louise Alison Welling, David Richard Lonsdale Partridge, Pamela Louisa Steele, Margaret Eleanor Belcher and John Hargreaves Belcher, adult beneficiaries. Mr K. A. Gough appeared for David Seymour Belcher, an infant beneficiary, and Mr D. J Hewitt appeared for the Society for the prevention of Cruelty to Animals as a beneficiary. Mr Leggat in his submissions said the son was now aged 22 years, was illegitimate and a victim from birth of cerebral palsy. The testator had died in October, 1962. The estate for consideration was £11,500. Richard John Belcher, who had never married at any time, had no relatives or dependants who were or could have been claimants other than the son who was suing through his mother as his guardian in law, said Mr Leggat. Contributions Made Paternity had been established and was acknowledged during the testator’s life time, evidence of that being the contributions the testator had made for his son’s support. Under the will a niece, Mrs Welling, and a nephew, D. Partridge, each received a legacy of £275. The remainder of the estate was divided into tenths. One-tenth was to be distributed in specified proportions to those parties for whom Mr McClelland and Mr Gough appeared, at the hearing.

The income from the remaining nine-tenths went to the support and advancement of the testator’s son during his life time and after his death was to be divided in a specified manner for distribution to those who had shared in the distribution of the original tenth, plus some provision being made for the mother of the testator’s - son. The S.P.C.A. was to receive an outright bequest of £lOO. Mr Leggat, who on behalf of the son had sought the whole of the income of the estate with power to resort to the use of the whole of the capital, said the other beneficiaries could not have been claimants under the act. AH ranged from being comfortable to affluent, and all were in good health.

The son’s medical history must have been known to the testator and that made the son not merely the testator’s paramount duty, but an exclusive duty. The testator’s discharge of that duty during his lifetime had been lamentable. Initially he made weekly payments of 7s 6d which increased to £1 Is, then £1 10s, and in the later stages of his life to £3. The testator had left a situation of his own making to the good offices of charitable organisations or to Social Security, said Mr Leggat. In death he was doing what he had done in his life time. “No Breach Of Duty” Mr McClelland said the Court could not allow the proceedings to have been brought to benefit the mother. Lt would have been wrong to allow them to develop into something which in reality was an application by the mother who could not bring an action under the act herself. He submitted there was no need for further provision as when the task of caring for the son became beyond his mother or on her death he could enter Templeton Hospital where the income from the estate he was to receive under the will would be inadequate. There had been no breach of moral duty on the testator’s part in not arranging for his son’s possible admission to hospital. Mr Gough adopted Mr McClelland’s submissions, also stating there had been no breach of moral obligation on the testator’s part. Mr Hewitt and Mr Bowie said they would abide by the Court’s decision. His Honour’s decision was that the income from the whole of the estate should be available for the son as required and that in any year that the income fell below £520 the trustees were to resort to capital to make up that amount. The power to resort to capital was increased from half of the nine-tenths residue of the estate to half of the whole estate. His Honour in reserving leave for all parties to apply to the Court at a subsequent date said he had not sufficient evidence before him to decide the question of what was to happen when the son no longer had his mother’s care. COSTS AGAINST THE CROWN Mr Justice Wilson in a reserved decision in the Supreme Court yesterday allowed James Hillhouse, aged 38, a workman, £lO 10s costs against the Crown. On May 18 his Honour ordered that no indictment be laid against Hillhouse who had been committed to the Supreme Court for trial on May 10 on a charge of threatening to kill his brother, William Hainey Hillhouse, on March 26.

Mr C. M. Roper appeared for the Crown. Mr A. D Holland appeared for Hillhouse.