DISPUTED WILL

Evening Post, Issue 98, 27 April 1936, Page 10

DISPUTED WILL

APPEAL UPHELD

Judgment was delivered by the Court of Appeal today-on what was in effect a claim by Kathleen ■ Mcmaster, married daughter or the late George Gordon Holmes, a sheep farmer, of Halswell, Canterbury, for further provision under the will of her father. The case was an appeal from a judgment given by Mr.'Justice Northcroft at Christchurch, in which his Honour, considering that no provision, had been made in the father's will for the appellant aiid that there had in the circumstances been no failure on the part of the deceased and moral duty to the appellant; dismissed her application for a share of the estate.

"Shorn of extraneous facts," said the judgment delivered today by Mr. Justice Ostler and Mr. Justice Blair, "the position in this case is that a wealthy man has died leaving a daughter in actual want and has made no provision for her. The assets of the estate are ample to provide for her maintenance. The testator has provided an annuity of £250 to another daughter and forgivert. debts owing to him. This daughter has a husband earning about four times as much as the appellant's husband and is' possessed of certain properties as well. Owing to the power in this Court to settle the incidence of any maintenance ordered, an order can be made in the appellant's favour without undue hardship to any necessitous recipient of the testator's bounty. Under these circumstances it seems clear that an order should be made, but for maintenance only and not for the payment of a capital sum. No capital sum is asked for by the appellant."

"The order I would make in appellant's ' favour," said Mr.' Justice Blair, who read the judgment, "is for an annuity of £3 per week to date from the ' testator's death, such annuity to be payable monthly and with the usual provisions for restraint against anticipation and any other usual protective provisions. The provisions of the will relating to setting apart and appropriating a fund to satisfy such annuity with right to resort to capital in case of insufficiency of income of the appropriated fund is also to apply. The terms of leave to appeal to the Court as a pauper provided that if an order were made in appellant's favour the case was to be remitted to the Supreme Court to deal with the question of incidence after .hearing the parties, and the case should be remitted accordingly." ■ The Acting Chief Justice (Mr. Justice Reed) and Mr. Justice Kennedy agreed with Mr.. Justice Blair's judgment.

The appellant, Mrs. McMaster, was represented by Mr. C. S. Thomas, with him.Mr. H. O. Jacobsen. The trustee of the will, John Roberts Cunningham, who was cited as one of the respondents, was represented by Mr.. A. W. Brown. Elizabeth Holmes, Mary Elizabeth Paterson, and others,, also cited as respondents, were represented by Mr. W. R. Lascelles, with him Mr. R. C. Abernethy.