VARIATION OF WILL

Dominion, Volume 25, Issue 171, 15 April 1932, Page 7

VARIATION OF WILL

Son’s Legacy Increased A PHYSICAL DISABILITY "If plaintiff still possessed his health and strength in undiminished vigour I should have come to the conclusion that no ground had been shown for the interference of the Court/ said his Honour, Mr. Justice Ostler, when delivering judgment in the case in which Reginald John Downing, son of the late John Downing, of Whiteman’s Valley, sought to have deceased’s will varied in his favour. “Plaintiff left his father at 22 years of age, and for 19 years preferred to work for himself,” said his Honour. “During that time he married and had three children, and proved himself quite incapable not only of making his way in the world and improving - his position, although he had the requisite health and strength, but even of providing his wife and family with adequate maintenance. The testator gave to his solicitors when he made his will his reasons for the provisions in his will in favour of plaintiff. The reasons he gave were that plaintiff was a spendthrift and was not able to appreciate the value of money or to be trusted with money, and the evidence seems to support his view. "But it seems clear from the evidence that plaintiff is threatened with recurring hernia, and is not fit for any but light work,” continued Mr. Justice Ostler. “Moreover, that is the fact now, and it seems to have been the state of affairs with him at the time of his father’s death. Had the testator realised that the operation which was performed in 1929 would not be entirely successful, I feel sure that he would have considered some further provision. I think, therefore, that on this ground, and on this ground alone, I ought to make some alteration in the will in his favour. I propose first that he should have a lump sum of £5O. This will enable him to have his recurrent hernia attended to and to pay the cost of the operation. In addition, I propose to increase his legacy from £3OO to £4OO, but the extra £lOO will be subject to the same restriction as is imposed on the original legacy.”

His Honour ordered that the money should be paid from the share of his brother, Gilbert Edward Downing.