WHERE TESTATOR’S ERR

Hokitika Guardian, 19 November 1927, Page 4

WHERE TESTATOR’S ERR

(By a Barrister)

The fact that .Mr Justice Russell lias recently held that a .condition in a v. ill forbidding a legatee to marry a

“blood relation” is void may be a icliiinder that in real life there is a limit to the whims of testators—though in fiction, and especially in farce, there does not appear to he. The judge held the (audition void because it tended to restrain tiie honeiiciary from marrying a state of tilings against public policy, which the law would not uphold.

There are plenty of other conditions which would be banned for the same reason. One example would he a le-’ gacy to a married woman, living with her husband, provided she left him. The policy of the law being that married people should live together, she could take the legacy and ignore the condition.

Testators often desire that persons to whom they leave their homes shall reside in them, but unless they make their wishes very clear they may he defeated for another reason—because the court finds them too vague to enforce. “Reside” is, of course, a very elastic word, and a claim could he made that the condition was satisfied by keeping a bedroom ready and sleeping in it one or two days a year.

Me;rover, the law will never now allow any condition tn defeat a life tenant’s overriding right to sell a property, through liis right to sell a “mansion-house” (a house,' not a farm-house, with grounds of over twenty-five acres) is not absolute.

There v.-ns ;i curious case a feuyears ago whore a testator left his residuary estate to liis son if the latter should have become a baronet cr peer, ft was nrgnecl on behalf of the son that such a condition would tend to induce him to avail himself of im-Pf-oner means to acquire the dignity, and was therefore void. The Court of Appeal, however, upheld the condition, though it might have boon different if the minimum rank required had been a peerage, carrying political rights. About the same time a lady of oldfashioned views- left money to a church on condition that the services should he held ‘"‘at the true time of the sun.” Having regard to the statutory “summer-time,” it was successfully argued by counsel for, the rector that the condition was an indictment to him to commit a breach of the law, and therefore void. A “name and arms” clause—that is to say. a condition that the beneficiary shall lake the name and arms of the testator—is usually good. To one recent case, however, a beneficiary suddenly found that two persons of ditto rent names and arms had each left him their property on such a condition! And the court told him that he could not keep lxith estates. ' The above observations will show that persons who wish to make unusual conditions in their wills may defeat their own intentions l>y lack of knowledge of the law. An ordinary will may or may not require expert advice, but for anything out of the common it is foolish to dispense with it.