A DISPUTED WILL

Poverty Bay Herald, Volume LIV, Issue 16797, 9 November 1928, Page 7

A DISPUTED WILL

UNUSUAL CIRCUMSTANCES RESERVED JUDGMENT Judgment has been delivered by Mr. Justice Ostler in the action of Willian Alexander James Gibson and others v. William Cooper, an originating summons asking for further provision out of the estate in favor of the plaintiffs.

The case was heard at the March sittings when the point was raised by Mr. L. T. Barnard, who appeared for the defendants, that the applicants were not entitled to come in in priority to one- of the legacies, as that had been mortgaged over a year after the testatrix’s death, and any order now made would involve a disturbance of the rights of the mortgage. It was arranged that the hearing should be adjourned, and that evidence should be given by affidavit of the facts involved in the mortgagee’s claim. In the course of his judgment His Honor stated that he was satisfied that at the time of the making of the will the deceased lady believed that her share in certain properties amounted to £20,000. He was also satisfied that in fact, after allowing for the debts due by the deceased, Ihc net value of her estate amounted to no more -than £750. Under these circumstances it .was clear that the gifts of £IOOO eacTi which she had made to her brothers would not have been made hail she known the true value of the estate. Obviously her main desire was to benefit her husband, son and daughter, who had the stronger moral claim on her bounty. His Honor then proceeded to deal with the question which arose through one of the brothers, William Cooper, having mortgaged his legacy. It was argued on behalf of the defendants that the court had no jurisdiction to strike out the legacy, and alternatively, that in any event, the legacy should not be cut down beyond the amount of .the mortgage. His Honor held that the mortgaging of the share could not be held to be a financial distribution within the meaning of the Family Protection Act, but he further held that as the security was taken out after the expiration of the 12 months allowed by that Act and before there had been any application to the court, the mortgagee should be treated on equitable principles. If the mortgage was taken bona fine and without notice of any claim, the rights of the mortgagee ought not to be prejudiced by any order of Ihc court made under the Act. His Honor held that that was the case here, and that the mortgagee was therefore entitled to be protected to the extent of his mortgage, £SOO, at which amount; William Cooper’s legacy would stand. The other legacy to Eni Cooper should be deleted altogether, and the balance of the estate held on the remaining trusts of the will.

Mr. A. H. Miles appeared for the plaintiffs, and Mr. L. T. Burnard for defendants.