FAMILY PROTECTION ACT

Evening Star, Issue 21582, 30 November 1933, Page 11

FAMILY PROTECTION ACT

WIDOWER SEEKS PROVISION CASE IN SUPREME COURT A claim by a widower under the Family Protection Act for provision out of his late wife’s estate was heard before His Honour Mr Justice Kennedy in the Supreme Court to-day. The case concerned the will of the late Annie MacKenzie, the plaintiff being Thomas MacKenzie, and the defendant the Public Trustee and A. J. Elliott and children. Mr B. A. Quelch appeared for the plaintiff, Mr F. B. Adams for the Public and Mr J. C. Parcell for A. J. Elliott and children. Mr Quelch said the will of the late Annie MacKenzie was made in Australia in April, 1924, and under its terms Thomas MacKenzie was left nothing. A life interest in the estate was given to the son of a former marriage, and the remainder to his children. MacKenzie married his late wife in 1914 at Cromwell. Between 1914 and 1919 lie was manager of and partner in an orchard and farm in the Cromwell district. About 1919 he inherited a house property in Cromwell, and made certain alterations, renovations, and additions, for which he paid. In that house the late Mrs MacKenzie successfully conducted a nursing home and boarding house. MacKenzie asserted that he paid the household expenses of the establishment. There were affidavits from tradesmen regarding the purchase of goods, and in addition MacKenzie stated that during his married life he paid his wife sums of a total of not less than £6OO. A former boarder at the house stated in an affidavit that he had seen the late Mrs MacKenzie removing money from the pockets of her husband. It appeared that the married life of the parties was not exactly a happy one, and it would be submitted that it was owing to the sharp temper and over-bearing nature of Mrs MacKenzie that trouble was caused. In February, 1927, Thomas MacKenzie left Cromwell, and walked over the Haast Pass to the West Coast. Prior to his departure a deed of separation was entered into, but MacKenzie said that after the execution of the deed ho went back, and lived in the house of his wife. It appeared from some of the affidavits that the conduct of MacKenzie in the past entered into tiie case. It had been asserted that he was a steady drinker, but it would be submitted that he was not a chronic addict to liquor. MacKenzie said ho had no assets. He had been a steady and industrious worker, but a doctor had stated it would be inadvisable for him to do heavy manual work again. Jt was submitted that he was a fit subject- to come under the provisions of the Act, as he was in poor financial circumstances, in poor health, and of good and reputable character. Thomas MacKenzie, who was present for examination, stated in answer to Mr Parcell that he had very little money when he was married. Ho was not aware when ho married that his wife had money. After being in orchard and farm work ho had a taxi business in Cromwell. He denied that for two or three years before he left Cromwell lie had taken to drink rather heavily. He did not carry on tho taxi business for the benefit of a lot of drinkers. His wife accused him of drinking too much, but quarrels did not arise because of that. His wife did not accuse him of immoral conduct. He maintained her up to the time of the separation. He earned the money ho gave his wife. Ho admitted ho had borrowed money from his wife, but he denied that the borrowing of money was a frequent cause of trouble with her. in reply to His Honour, MacKenzie said his wife was nineteen years older than he was. At the time of the marriage she told him she was ton years older. Ho was at that time twenty-six. and she said she was thirty-six. For

the last year he had earned an average of £1 a week, plus his keep. Called by Mr Parcell, Dr W. Newlands said he examined MacKenzie on Tuesday. Witness would say he was a man who was to a slight extent older than his years, but otherwise there was no unsoundness. He was obviously a man who had had a fairly hard life, and was consequently older than his years of forty-six. His Honour; What provision do you suggest for the plaintiff, Mr Quelch? MrQnelch said it was suggested there should be payment of a lump sum of £SOO, plus an annuity of 10s a week, or, in the alternative, a straight-out annuity of 2os a week. Mr Adams said that on behalf of the Public Trustee he had filed an affidavit showing the position of the estate and the form in which it was invested. The value of the estate was substantial. The estate consisted largely of mortgages, which probably could not he speedily realised. The Public Trustee would submit to the judgment of the court. Mr Parcell said the plaintiff might contend (1) that as he was the husband of a wife with means he was entitled to some consideration from her estate; (2) that he so increased her estate by his efforts that ho was entitled to consideration; and (3) that when Mrs MacKenzie died his circumstances and his health wore such that notwithstanding anything else a moral obligation arose. Counsel submitted that the first ground was untenable on general principles ; there was no obligation arising out of the marriage itself. Cases in which widowers claimed relief were few, and it was significant that in Victoria a widower was not allowed to claim at all. In regard to the second point there was the fact that MacKenzie did not contribute anything at all towards his wife’s maintenance for several years after he went to the West Coast. Further, the wife did not support him for that time, and did not set his standard of living. It was submitted that there was no obligation to provide for an able-bodied man. H seemed apparent that MacKenzie did do some drinking. It was significant that before any allegation was made against him MncKenzio had filed numerous affidavits tending to prove that he was not a drunkard. Then it was clear that plaintiff did borrow from his wife, and it was contended that that had been a cause of trouble. In tho circumstances it was contended that the plaintiff had contributed to the break-up of tho home and to the separation. His Honour intimated that ho would reserve his decision.