CLAIM BY WIDOW

New Zealand Herald, Volume LXXIII, Issue 22346, 18 February 1936, Page 14

CLAIM BY WIDOW

MAN'S LARGE ESTATE NO PROVISION IN WILL COURT FIXES PAYMENT ALLOWANCE OF £7 A WEEK The will of a man who disposed of a £26,000 estate without any reference to his wife was the subject of a judgment delivered in the Supreme Court yesterday by Mr. Justice Callan. The testator was John David Jones, contractor, of Auckland, and tho action wag brought by his widow, Evelyn Jones, who sought an order for maintenance or a lump sum. The Court granted applicant maintenance at £7 a week.

The defendants were George William Hutchison, trusteo and a legatee, and several other legatees, brothers and sisters, or their dependants, of the testator. It wa3 stated at the hearing that the applicant and deceased were married in 1923 and lived happily until toward tho end of 1926. In that year they separated and as a result of proceedings in the Magistrate's Court applicant was granted a maintenance order for £lO a week. In 1931 deceased took proceedings for a variation and tho amount was reduced to £5 a week. These proceedings were taken as deceased's income had been reduced by the depression. The submission was made on behalf of deceased's widow that she was entitled to receive from the estate the amount, £lO weekly, which deceased himself had agreed was a fair payment. The Widow's Rights

In delivering judgment His Honor said: —"I am satisfied it is not established that the widow was to blame for the separation. On the contrary, that is improbable, and should not be assumed against her. She has therefore a claim under the statute. No beneficiary under the will, and, so far as has been shown, no other living person had any claim upon the testator which can be allowed to compete with the widow's claim. "The proper course to take is, therefore, to ascertain the measure of the widow's rights. Once that is ascertained there should be made available for the widow so much of the estate as is necessary to satisfy her claim; and if the satisfaction of her claim would absorb the whole estate, it should be allowed to do so, regardless of the disappointment of the beneficiaries to whom the testator has sought to leave his property, while neglecting his statutory duty to his widow." The only questions, therefore, were how should the widow's claim be met, what was its measure, and what should be its incidence? The claim should be met by a periodic payment and not by a lump sum. Tho best available evidence of the measure of tho testator's duty to his widow was afforded by considering the fact that, after the separation, he agreed to pay £lO a week and the fact that the widow, during his lifetime, afterward agreed to accept temporarily £5 a week. Fixing the Amount

" But neither of these figures should be accepted as the actual measure," continued His Honor. " There has been serious diminution of the estate since he agreed to pay £lO a jveek. And as to the £5 a week, she agreed to accept it only temporarily, and at a time when the testator was alive and had to be maintained himself. Taking these factors into account, I.fix £7 a week as the measure of applicant's rights under tho statute. This is to date from the date of testator's death, and is to terminate should the widow remarry." His Honor ordered that tho provision made for the widow should fall upon the residue of the estate and said: " As the value of the residue is such that, on any duration of the widow's life which may fairly be * considered possible, the residue will prove sufficient to meet the payments to the widow, this is a proper case for exoneration of tho specific legacies, and an order is made accordingly. " Whether, and, if so, when any portion of the residue may be paid to the persons to whom tho testator gave the residue, must be left to the subsequent consideration of the executors, or for settlement by the Court v under the leave to all parties to apply which is hereby reserved."