GIFTS TO WIFE

Otago Daily Times, Issue 23669, 29 November 1938, Page 3

GIFTS TO WIFE

ELDERLY MAN"S ESTATE APPLICATION BY DAUGHTER Two cases brought under the Family Protection Act were heard in the Supreme Court yesterday before His Honor Mr Justice Kennedy. The court heard an application by Henrietta Pauline McPherson with regard to the estate of her father, William Bain, of Roxburgh. Mr I. A. Arthur appeared for the applicant; Mr A. N. Haggitt for the widow, Mrs Bain; Mr D. A. Solomon for the trustees of the estate, and Mr I. B. Stevenson for two re-, siduary legatees, Georgina Nichol-" son and Lena Munro. Testator's Remarriage Mr Arthur said that after having been married for 48 years to his first wife, who died in 1928, Bain was married again at the age of 72 years in 1930, his second wife being then 43 years of age. The applicant, Mrs Nicholson, who was a daughter of the testator, had sworn in an affidavit that during his first marriage his wife had given him every assistanpe in building up his estate and had put a sum of money into his business. In January, 1933, the testator made a will in which he left his furniture, as well as his household and personal effects, to his widow, who also received his car and a freehold property in Roxburgh valued at £925. The residue was to be divided into five parts, two of which were to go to the widow and the other three equally to the three daughters by the first marriage. The applicant's share would then havt been more than £SOO, but as the widow had sworn that since the marriage she and the testator had been living on capital, it was likely that the share would have been considerably larger at the time the will was made. In 1934 the testator paid a debt of £125 which had been incurred by Mrs Bain. In March, 1935, the testator made a codicil to the will by which the widow was to receive a further sum of £ 500. During the came year he made two gifts of £4OO each to his wife, and transferred to her by way of gift a freehold property in Roxburgh valued at £4OO. Finally, in February, 1937, he made a gift to his wife of £ 1273 in cash. Thus he effectively stripped himself of the whole of his assets axcept those specifically bequeathed to his widow. The result was that when he died there was no residuary estate in which the applicant could share. Why Were Gifts Made?

Counsel suggested that it was significant that, with the exception of the debt of £125, all of the gifts were made after February, 1935, and said the widow had sworn that at that date the testator, then an old man of 77, had had a serious and sudden illness. It was justifiable to inquire why the gifts had been made, because the wife had paid gift duty, amounting to £ 126, which could have been avoided if the money had been bequeathed to her and a simple alteration made in the will. It was, of course, a well-estab-lished fact that the widow was entitled to receive first consideration, but in this case the parties had been married for only seven years, and the wife had certainly not given the testator the best yes s of her life. Even on her own showing, the widow was in a much mc z comfortable financial osition than the applicant. It was obvious that the testator had failed to make adequate financial provision for M McPherson, and it was suggested that the court should rectify the position. Mr Solomon said the trustees submitted to the judgment of the -rt. He pointed out that the deceased died on June 8, 1937, and probate was granted *r June 24, 1937, yet the proceedings were not filed until June 23, 1938, at the very eleventh hour. Distribution of the estate had been completed by December of last year; Mr Stevenson said that neither of the two daughters of the testator whom he represented made any claim for herself,* but they were favourably .disposed towards the plaintiff's claim. The will and codicil showed definitely that the testator intended to benefit his three daughters. That intention had been defeated by the making of the gifts, but, counsel submitted, there was ample evidence to show that the widow was in a much better position than the applicant, who was deserving of consideration. Duty of Testator

"I submit that this is not a case in which the court should interfere with the will," Mr Haggitt said. " The moral duty of the testator was to provide adequately for his widow, and her affidavit shows that he was anxious to do that. That, apparently, was the reason for the gifts. The final amount of the.' estate was £3862, of which £2598 represented gifts, and I submit that there is-no jurisdiction over that amount." Counsel said the marriage had been a happy one, and there was no question that even towards the time of his death the testator had lacked business abilitv. He had made gifts to the value of £2BO to the applicant. In considering whether he had failed in his moral duty, the court should accept as relevant only the circumstances ruling at the time of his death. The apolicant was not destitute and it seemed that if the necessity ever arose an effort could be made by the family to assist her. His Honor reserved judgment. SETTLEMENT REACHED PROVISION FOR WIDOW It was announced by counsel that a settlement had been reached in a case with reference to the estate of Georee Hunt, of Owaka. The deceased left the bulk of his estate of £3OOO to two sons after provision had been made for the widow. The will directed that after the death of the widow the proceeds from a property at Waikouaiti should be divided among the remaining members of the family, which totalled 15. Counsel engaged in the case were Mr J. B. Thomson, Mr G. T. Baylee, Mr J. G. Warrington, and Mr G. B. P Wilson. Mr Thomson said that, aftei protracted negotiation the case came before the court in the form of a consent order There had been several objections to the will, which did not make adequate provision for the widow, as the sons received to all intents and purposes, the whole of the estate. There were 15 surviving children and, broadly speaking, they were all joor circumstances and in poor health. In their youth thev had been almost compelled to contribute by way of labour and, sometimes, in cash, to the formation of the estate left by their father. Having regard to those facts, a settlement had been reached on the basis of the widow receiving

more substantial provision, and the family, with the exception of George Hunt, sharing equally in the remainder. It was agreed that George Hunt should receive an additional allowance, as he was the eldest of the family and was possibly in a worse position than the o'hers.

" I am glad the parties have toen able to reach a settlemi t in this matter," his Honor said, " and have worked out a consent order of a kind which the court mieht otherwise have found it very difficult to make." An order was made