DISPUTE OVER A WILL.

New Zealand Herald, Volume LXI, Issue 18742, 23 June 1924, Page 9

DISPUTE OVER A WILL.

CLAIM BY A v DAUGHTER.

PROVISION OUT OF ESTATE.

ORDER REFUSED BY COURT.

A written judgment was delivered by the Chief Justice, ■ Sir " Robert \ Stout, at the Supreme Court oh Saturday, in a case, described by His Honor as " a somewhat novel one," broughtunder the Family Protection Act, 1908. 7 The plaintiff was Mrs. Alice Emily Sollitt (Mr. Conlan), of Auckland, and the defendant William J. P., Fairhead (Mr. Leary), builder, of; Palmerston North, executor of the will of the latn William Fairhead, settler, of Palmer«ton North, father of the parties. Plaintiff sought an order making provision for ■her. -■ '■ , - r;'

His Honor, in reviewing the circumstances of the case, said testator left three children, and several grand-children. He made his will on October 15, 1920, and died on November 6, 1922. Probate was granted on November 16, 1922. On May 23, 1923, executor had distributed the estate, and on June 21 a letter was'sent to the executor by plaintiff, threatening to .take proceedings under the Family Protection Act, but the summons was ; not issued until September 27, 1923.

The estate ' was "worth £3752, "from which amount duties and costs had to be deducted. Various legacies were left. The sum of £5 each was given to his grandchildren and great-grandchildren; there was a small legacy to a cousin and another to a church. In all £120 was bequeathed for small legacies, and a £100 legacy was given to his ,son, the executor, j The residue of the estate was given to his j son, and to his daughter, Rhoda Jean { Mackie, but nothing was left to Mrs. Sollitt, although five small ; legacies of £5 each were left to the Sollitt family. For the purpose of succession, only £1800 was ! assessed as the legacies coming to the son, and £1760 to' the daughter, Mrs. Mackie. There were, said His Honor, four questions to be considered: (1) Was plaintiff too late in making her application, seeing that the estate had been distributed.? (2) J Could no legacy being left by the will be : explained ? (3)' what, was her financial position (4) -.; what was the financial position of her brother and sister ? ; ; : His Honor, continuing, said ' that plaintiff, in December, 1922, wrote: "I do not intend to contest father's unjust will J (he knows by now how wrong he was), nor' do I intend to take action in any j shape or form." The executor, haying received such a letter, ■ and the estate being wound up, he was, in His Honor's opinion, justified in distributing the estate. Piaiutiff's conduct writing the letter,' abandoning any claim, could not be overlooked. As to the second question, the explanation given was that plaintiff's husband;; purchased from her father a property: worth £2400 for £1500, which he sold a few days later, making 60 per cent, profit. That transaction made testator believe that plaintiff's husband had already got a considerable share of his small property. Dealing, with the third question, His j Honor said plaintiff's present financial position seemed to ibe worse than it was when testator, made his. will, and also worse than at. the time of his death. .;; She and, her husband, by becoming guarantors to 'the bank for : her son in.-: his farm, had greatly weakened their financial position. As to the financial position of the i Mackie family, . His :Honor said /that' Mrs. Mackie had no property, and her husband's earnings did not .exceed £200; a year. 'Finally, the defendant, 'who was a carpenter, 58 years of r age, ■? had stated that ■' his earnings were ? about \£3 a week, ; and his total (: assets;', outside the legacies, i were worth no ; more \ than £400. Considering all the questions, His Honor was /of • opinion that the i case - was; not; ?; one ;in which an; order should be made. /Judgment was entered accordingly/Defendant was allowed £5 5s ; costs; and; disbursements.