FATHER AND SON DIFFER

Northern Advocate, 23 May 1928, Page 8

FATHER AND SON DIFFER

DISPUTE OVEN PARENT’S WILL

PROVISION OF £4OOO ASKED FOR. A ease arising out of the will of Mr Charles Lewis, formerly a Canterbury member of Parliament, who went to live at Waipukurau, Hawke’s Bay, anl died there, came before Mr Justice Adams at Christchurch, It came up in the form of an originating summons under the Family Protection Act.

The plaintiff was Brian Llansanwyr Lewis, of Dannevirke, sou of Mr Charles Lewis, farmer. The defendants were: George Gould anl Frederick Maurice Warren, Christchurch, merchants, executors and trustees of the will; Jessie Lewis, Waipukurau, widow of Charles Lewis; Helen Jessie Pedler; Marion Gertrude Baker, wife of Horace M. Baker, Makaretu, farmer; Charles Llewellyn Lewis, Makaretu, farmer; Annie Ethel Buchanan, wife of John Buchanan, Waipukurau, farmer; and Herbert Halswell Lewis, Waipukurau, farmer.

It was claimed that Charles Lewis’ will failed to make adequate provision for his son Brian, and an order was asked for directing the trustees to set apart the sum tate and to pay the annual income to Brian Lewis.

Mr F. S. Wilding appeared in support of the application, and Mr Brown for the trustees.

Mr Wilding said that Mr Charles Lewis left an estate worth £14,000. He was survived by his widow and four daughters and three sons. During his life each received about £SOOO. A farm was bought for Brian in the North Island, but he had lost the whole sum. ,He was thirty-six years of age and had nothing. He received nothing under the will. All the other members of the family felt that Brian had been treated very badly. They agreed that he should come in and share with them. They signed an agreement, subject to the Court’s approval, and an application now was made for an order setting aside £4OOO in favour of Brian, in terms of the agreement.

In reply to his Honour, Mr Wilding said that two of the daughters had children under fifteen years of age. His Honour: How can it be to the benefit of these children if £4OOO is taken out of estate? I wish to know the amount of their interests. I do not see how.l can arrive at the conclusion that it is for the benefit of those children to make the order.

Mr Wilding said that the order was asked for under the Family Protection Act in view of Brian’s circumstances. The other members of the family said that they considered it a fair thing to do. His Honour: You cannot do what is called fair under the Family Protection Act, Under the Act, all the Court can do is to make an order to supply inadequate provision by a testator for somebody to whom he has a duty. The Court cannot "do the fair thing," which, in plain terms, w r ould be making a new will.

Mr Wilding said that Brian saw war service, was trained to farming, and lost every sixpence on the farm he had bought. His Honour: Those were things the testator might have considered. The other members of the family might wish to correct the position, but it is no part of the Court’s duty to correct it under the Family Protection Act. You are asking me to re-form the will. Yon are not proving that a mistake was made.

Mr Wilding: No provision whatever was made for this son, Mr Lewis quarrelled with this sou when he made the will.

His Honour: Unless all the parties arc represented, it is impossible for the Court to make an order.

Mr Wilding asked, in the alternative, for an order that such provision as the Court thought fit should be made out of the estate in favour of Brian Lewis, and that service of the summons on defendants should be dispensed with. Ho asked that the infant children—Mr C. Lewis’ grandchildren—.should be represented by their parents.

His Honour; The parents already have agreed to the arrangement to give Brian £4OOO. The children must have independent representatives. The duties of guardians ad litem are more serious than seems to be generally realised. It is their duty to look up tlio facts, and to come to the Court with information that will assist it in determining whether or not an application is in the interests of the infants concerned. You- must take the usual course. The persons appointed must be independent persons. I am afraid I can do nothing further. The first part of the summons clearly is short of the Court’s jurisdiction, and'when it is properly before me I will consider the merits of the case.