MAINTENANCE OF TESTATORS' FAMILIES.

Otago Witness, Issue 2561, 15 April 1903, Page 30

MAINTENANCE OF TESTATORS' FAMILIES.

AN IMPORTANT JUDGMENT.

In the course of a judgment in a Wanganui case -under the Testators' Family i Maintenanca Act of 1900, Mr Justice Edwards (says the Post) gave some rulings of general interest. He agreed with the- expression of opinion of the. Chief Justice in re Phillips that in determining whether or not adequate provision had been made for the proper maintenance and support of any person coming within the provisions of the act regard must be had to the value of the estate and j to the position which the wife had hitherto [ held. Regard, ho said, must also be had to the interests of persons taking under the will who have natural claims upon the testator's bounty and also to the testator's intentions as evidenced by his will. The testator's intentions certainly should be interfered with as little as possible consistently with a due regard to the object of tho statute. But where it was es'ablished that a testator had not made adequate provision lor the maintenance of his wife or of some other person coming within the benefit of the statute for whom it was his natural duty to provide, then his Honor thought it was the duty of the court, so far as might be without destroying the interests of others who had natural claims' upon him, to remedy that omission. And, notwithstanding the expression of opinion of Mr Justice Denuston in re the will of Rees to the contrary, .he (Mr Justice Edwards) thought that the powers conferred upon the court might in a. proppr case be rightly exercised by giving to a person coming within the benefit of the statutp far more than that person -would have taken if the testator had died int?3tate. possibly even to the extent of the whole estate. Obviously, in many cases to give to such person only what that peraon would have taken under an intestacy would not be to make proper provision for his or her maintenance and support. If what * widow, widower, or child would have taken under an intestacy were to be the measure of what fhould be given where the estate is .^mall it ought also to be the measure where the estate is large. In the one case this would not provide adequate maintenance snd .support ; in the other j it would provide far more-. In either case I the intention of the Legislature, it seemed i 1o him. would m-obablv fail to he cirrcrl , into effect. If the Legi-lature had intended j that the eouifc Fhould administer the ac> by pnalegv to the law reffulating the distnbu- j tion of the estates of intestate? he thought that that intention would have been expressed ; and although it might be an anomaly (hat ft person earning within tue benefit of the statute miglvt be far better off if the testator had made an unju.it will ( wU : c-:> inad^ no provision for his or her j maintenance and support than under an j intestacy, under which hp or sire would have taken a considerable portion of the testator's estate, he thought that that enom*ly was due not to intention on the part of the Legislature to limit th" powers given by thp , "fatufce, but to an omission on the part of the frr.mers of the statute to nofce the fact that in snmp ca?P3 as grave i>n inia°lic° may lie done by not making a will us by making an ii.i ju*t will. The logical result, he lhou<rhf\ wps that if a persf.n who could j rhim th© benefit of the act of 1900 came to the r\->urt complairing that adequate pro- J \ision had not been made for his or her* maintenance and it appeared that tha r»-ta.toT had by his will made an absolute gift to such person. I hen as a general rule (which might no doubt be subject to excapliors) sneli uersc-n ought, m a condition upon which p'-ovi-sion was made by Use court for hi« or her maintenance our of the testator's <•><-( ate, '° be required to give up such absolute tnft. Such person ought not, he tl'ouchl. to he allowed both to approbate • snd to renrobate th« will. Thi« '.femed to have been in the contemplation of the Legislature, and to have been met by the provi- ' s'-on enabling the court to attach such condi- i tion.} to an order made under tlie statute jw ! it should think fit. "I