FAMILY PROTECTION ACT

Otago Daily Times, Issue 22125, 1 December 1933, Page 3

FAMILY PROTECTION ACT

CLAIM BY A WIDOWER PROVISION OUT OF WIFE’S ESTATE A claim by a widower under the Family Protection Act for provision out of his late wife's estate was heard before his Honor Mr Justice Kennedy in the Supreme Court yesterday. The case concerned the will of the late Annie MacKenzie, the plaintiff being Thomas MacKenzie, and the defendant the public trustee and Archibald James Elliot and children. Mr B. A. Quelch appeared for the plaintiff, Mr P. B. Adams for the public trustee, and Mr J. C. Parcell for A. J. Elliot and children. Mr Quelch said this was an application under the Family Protection Act by Thomas MacKenzie, who claimed provision from the, estate of his late wife, Annie MacKenzie. The will of Annie MacKenzie was made in Australia in April, 1924. By the terms of the will Thomas MacKenzie was given nothing, and a life interest was given to a son by a former marriage, , ”ith remainder to the children of that son. Thomas MacKenzie was married to his late wife in March, 1914, at Cromwell. Between 1914 and 1919 he was nanager of and partner in an orchard and farm in the Cromwell district. About 1919 he inherited a house property in Cromwell. Certain renovations, additions were carried out for which he paid. In this house the late Annie MacKenzie conducted a nursing home and boarding house. Thomas MacKenzie, in his affidavit, asserted- that he paid the household expenses of this establishment, and witnesses, by affidavit, testified as to MacKenzie purchasing goods _ from them. MacKenzie also said he paid his wife, during their married life, a sum of not less than £6OO. In this contention he was supported by a witness who was a former boarder, and by another boarder, who said he had seen Mrs MacKenzie removing money from the pockets of her husband. The marriage, was not exactly a happy one. The plaintiff laid' the blame on the sharp temper and overbearing nature of Mrs MacKenzie. In February, 1927, the plaintiff left Cromwell, walked over the Haast Pass, and. up to the West Coast. Prior to his departure a deed of separation was entered into, but plaintiff asserted that after the execution of- the deed he went back and lived in the house with his wife. Drink and the conduct of the plaintiff in the past entered fnto the question. It was asserted in an affidavit that he was a steady drinker, but from the affidavits filed in support of his claim it would appear he was never chronically addicted to alcohol, and that he was not a drunkard. Whatever might have been his faults in the past there 1 were affi : davits in his favour from employers on the West Coast and Cromwell. Thomas MacKenzie, the plaintiff, examined by Mr Parcell; gave evidence as to his means before he left Cromwell. He denied that he drank heavily. Ho did not carry on a taxi business for the benefit of a number of drinkers. His wife often accused him of drinking too much. He admitted he had a drink now and again. It was not owing to that fact that the quarrels arose. His w»fe never accused him of immoral conduct. He was never interviewed by the police about something of that nature. He claimed that he had maintained his wife up to the time of separation. When he left for the' coasb there were accounts owing to tradesmen, some of which were not paid yet. He had earned the £6OO which he paid to his wife. On one occasion he gave his wife a cheque for*: £2OO which- he obtained through the. -sale} 'M . .'Plbmlfrdke. The sectionswere in his wife’s mime, but they were his property. He had given his wife ■money .for trips to Australia. Jinnee leaving Cromwell he ‘ had kept himself, put he had little money* ; , pie intended to continue liis work as a larm- labourer and ojrchardist. He played in a football match on the West'Coast in 1927.. \Mr Parcell called evidence as to plaintiff’s-health. Dr Newlanda said he had examined the; plaintiff -on Tuesday last, and had found, no definite evidence of unsound health.',. He was a. map who had had a fairly hard life, and consequently was older than his years (46). His blood pressure- was higher than it should be for his age and might, have been expected in a mamsix'or eight years older. He was quite fit to do ordinary work, but - should' avoid heavy lifts. Witness did not find evidence that the plaintiff had been a heavy drinker. The fact that he played football when he was 40 years of age showed that he was pretty fit. In answer to his Honor, Mr Quelch said he suggested a payment to the plaintiff of a lump sum of £SOO, plus an annuity of 10s a(week, or in the alternative a straight-out annuity of 25s a week. - , ■’ • . Mr Adams said he had filed an affidavit showing the . position -of the estate. While the value of the estate was 'substantial he had no idea as to the realisability of the assets, which consisted largely of mortgages, which might not be capable of speedy realisation, and there was a dwelling-house in Cromwell..,- The public trustee would bow to the decision of the court. Mr Parcell said the plaintiff might content (1) that as he was the husband of a wife with means he was entitled to some consideration from her estate; (2) that he so increased her estate by his efforts that he was entitled to consideration; and (3) that when Mrs MacKenzie died his circumstances and his health were such that, notwithstanding anything else, a moral obligation arose.- Counsel submitted that the first ground was untouchable on general principles: there was no obligation arising out of the marriage itself. The cases in which a widower claimed relief were few, and it was significant that in Victoria a widower was not allowed to claim at all. The general principle was that there was no obligation to provide for an able-bodied man. In the, second place, unless the plaintiff could prove that he had contributed to his wife’s estate he * could not receive, and as he had not so proved his claim on that ground must fail. In the third place, the only ground on which the plaintiff had a chance of making a case was that his health was such that within a reasonable time bis earning power would so drop that lie could not maintain himself. As against that claim, his own evidence showed that at present he was quite capable of maintaining himself. It was for the plaintiff to show, from his medical evidence, that there was a reasonable probability that before long he would not be able to support himself, but that, counsel submitted, could not be proved. As a matter of fact, the plaintiff’s present state of health was not such as would call for further provision. As long as plaintiff could maintain himself as a farm labourer no one was called upon to give him any further provision. Mr Quelch said, after _ hearing the medical evidence, the court would no doubt decide that the plaintiff was in the position of a man who appeared older than lie actually was. Dr Newlands had testified to the fact that the man had no symptoms of having been a chronic drinker. The estate, according to the public trustee’s affidavit, was worth £SOOO, returning an income of £2lo a year. Under all the circumstances, counsel contended that the plaintiff was entitled to some provision out of the estate, which he had helped to build up, and to enjoy the standard of living that he enjoyed during his married lif*.

Mr Adams said he would like to add that since the public trustee signed his affidavit, he had been informed that Mrs MaeKenzie possessed property in Australia beyond that mentioned in her will, but it was not expected it would prove of any substantial value. His Honor said he would take time to consider his decision.