FAMILY PROTECTION ACT

Evening Star, Issue 23129, 1 December 1938, Page 21

FAMILY PROTECTION ACT

DAUGHTER'S CLAIM ON FATHER'S ESTATE APPLICATION GRANTED BY COURT Mr Justice Kennedy has given judgment in the case in which Henrietta Pauline M'Pherson sought, under the Family Protection Act, provision out of the estate of her father, William Bain, lute of Roxburgh, jotired farmer.

This is a claim by a daughter for further provision out of her father’s estate,” said His Honour. “ The testator was twice married. He was first married in ISBO. His wife died in 1928, and he remarried in 1930. He was then a man of 72 years of age, and his second wife was a woman of 43, She is now 51 years of age. There is no issue pf the second marriage. The plaintiff is a daughter of the first marriage. She is, and has been, a widow since 1924, and, though she has a large family, they have not been able to assist her. She is now 56 years of ago. Two children are still at school, and one will be with her for some time. She has had a hard struggle. Although she has a separate home she has discharged duties to her father since his remarriage, in his will, made in 1933 and confirmed in 1985, when a codicil was made, he made certain provision fpr the plaintiff and others. By the codicil he increased the provision for his wife. Subsequently, however, he transferred to his wife a property worth £4OO and made gifts of cash to her totalling over £2,000. His estate was so thereby that his wife received approximately £1,340, less expenses, and there was no residuary estate left; consequently the plaintiff takes nothing under her father’s will. The wife has had provision made for her by gifts and testamentary disposition totalling £3,862 19s 3d,' less expenses and duties, and less a gift of £125 included in the above amount, stated to bo to pay a debt guaranteed by the widow. The above statement is by way of narrative only, and is not intended as a complete statement of all relevant considerations. The facts of importance are not in real dispute, and I do not repeat them. “ The broad question is whether the testator has been guilty of a manifest breach of that moral duty which a just but not a loving father owes to his child. If the court finds that the testator has been plainly guilty of such a breach of his moral duty, then it is the duty of the court to make such order as appears to it sufficient, but no more than sufficient, to irepair it. No other child claims. I think in the difficult circumstances of the plaintiff it was the moral duty of the deceased to make some provision for the maintenance of the plaintiff, and that lie could do without undue reduction of the provision for the widow. There will therefore be an order that further provision he made out of the_ estate of the deceased for the plaintiff in the sum of £230. This will be charged upon and payable out of the Roxburgh property. It will be payable within 60 days from date. The plaintiff will be paid out of the estate the sum of £lO 10s costs and disbursements. The trustees are allowed £2 2s costs and disbursements, payable out of the estate. In case any practical difficulties arise in working out this order, it is ordered that this order may be varied by a judge and that leave is reserved to the plaintiff, the defendants (the trustees'), and the widow (Mrs L. S. Bain) to apply generally, but not for increase or reduction of the amount ordered.”

At the hearing Mr L. J. O. Arthur appeared for t’o plaintiff _ (Mrs M’Pherson), Mr A. N. Haggitt for Mrs L. S. Bain, Mr D. A. Solomon for the trustees (Messrs Tamblyn and Morrison), and Mr I. B. Stevenson for Georgina Nicholson and Lena Munro (two daughters).