SUPREME COURT

Otago Daily Times, Issue 21979, 14 June 1933, Page 2

SUPREME COURT

CIVIL SITTING Tuesday, June 13. (Before his Honor Mr Justice Kennedy.) FAMILY PROTECTION ACT. This was an originating summons in the estate of William John, of Haweft Plat, farmer. The plaintiff was Samuel William Edward John, and the defendants were the Public Trustee, Mary Flora H, Cnssels, and Henrietta Jam; Urquhart. Mr J. C. Parcell appeared for tbe plaintiff; Mr F. B. Adams for the defendants. The property in question was valued at £450; the testator made a gift of it to his two daughters, and the court was asked to allow the son to have a share. His Honor’s judgment was as follows; —The principles upon which further provision is ordered for an applicant under the Family Protection Act, 1908. are well settled by a series of decisions binding this court. It will be sufficient to say in the words of Mr Justice Salmond in Welsh v. Mulcock and anor, 1924, N.Z.L.R. 673,685: “The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances. If it is manifest that the testator has, whether consciously or inadvertently, failed to perform this duty, it is the right and duty of the court to perform it for him by making such alterations in bis testamentary dispositions as may be adequate, but no more than adequate, for that purpose.” The applicant’s health has improved, but he cannot yet be described as an ablebodied man in good health, when he is not fit still by reason of his condition except for work of a kind which is not likely to be available- to him and when his diabetes is held in abeyance by diet. In his affidavit sworn on October 3, 1932, he states that he could not stoop or bend down. There is medical testimony describing his disability, its treatment and improvement, and expressing the opinion that part of the disability preceded the testator’s death and that his diabetic trouble probably arose about that time. He deposes to hav r e made a bare subsistence before his disability. ' His wife is more or less a cripple. On the whole I think ho has made out a claim for some small provision at the time of the testator’s death. There will be an order that the following provision be made for the applicant—namely, that one-fifth of the residuary estate of the testator described in paragraph 3 of the will plus £2O, less the legacy |of £2O bequeathed to Mrs Vlictstra, be held in trust for the applicant. The applicant did not impeach the legacy of £2O and it will be paid out of his one-fifth share. The provision for the applicant will be made at the expense equally of the shares of Mrs Urquhart and Mrs Cassels. The applicant is allowed five guineas costs and disbursements, Mrs Urquhart is allowed three guineas costs and disbursements, in each case to be paid out of the estate. The costs of the Public Trustee, who was ordered to represent Mrs Cassels, taxed as between solicitor and client, will also be paid out of the estate.