PROVISION FOR A DAUGHTER

Taranaki Daily News, 27 February 1931, Page 2

PROVISION FOR A DAUGHTER

ORDER MADE BY SUPREME COURT GRANT UNDER FATHER’S WILL. Provision from the estate of the late Edward John McGinty was sought by his daughter, Alice Maud Henderson, in an originating summons heard by Mr. Justice Adams in New Plymouth yesterday. Mr. C. H. Weston appeared for Mrs. Henderson and Mr. J. C. Nicholson for Mrs. Helen Sinclair McGinty, the widow. The value of the estate, said Mr. Weston, rvas given as £12,000, but this did not take into account the goodwill of a hotel, a five years’ lease of which was sold a year ago for £7500. His Honour pointed out that any new premium for the goodwill would therefore be receivable four years from now. He mentioned that it was provided that Mrs. Henderson should take one-twelfth of the estate after the death of her mother.

Mr. Weston said that, assuming the capital value of the estate to be £15,000, one-tw’elfth would be £1250. The McGinty family comprised a mother, daughter and three sone. Mrs. Henderson was the eldest child. She was 40 years of age and had a daughter, a typiste (19 years) and a boy (16 years). The boy, who was at the New Plymouth High School studying law, had. been, unsuccessful in his attempts to obtain a position. On December 12, 1919, Mrs. Henderobtained a divorce, and since thou had received no maintenance from her husband. In one of her affidavits Mrs. Henderson related that during his life-time her father had expressed a wish that after his death his widow should look after hei- and her children.

It was admitted by the parties that the father, during his life-time,, had taken it on himself to maintain his daughter and educate and support her children. The family lived with Dlr. and Mrs. McGinty, who treated her with every affection and care. His Honour; The fact is that she is not now persona grata in her mother’s home, which is not a congenial place fo:; her.

Mr. Weston admitted this was so. He said that the health of Mrs. McGinty and of her daughter made it very difficult for them to get on together in the same house. Mrs. Henderson had been under a number of operations and w as in a very poor physical and nervous condition.

Counsel said that in the terms of the will the widow received the whole income from the estate. After her death the estate was to be divided in the following To Bernard, ten-thirty-sixths; to Cleveland, ten-thirty-sixths; to Edward, thirteen-thirty-eixths; to Mrs. Henderson, three-thirty-eixths. The last-named proportion would mean that, assuming the capital value were £15,000, Mrs. Henderson would receive £1250. Obviously this was inadequate. There was no provision for her at all during her mother’s life-time. Counsel submitted the

points for the Court were what should be done during the widow’s life-time and what afterwards. Mrs. Henderson asked the Court to award her £6 a week, together with the payment of any medical expenses, and, in addition, the payment to her of two-fifteenths of any future goodwills deceived for the hotel. For the other side, Mr. Nicholson submitted that some moral breach by the testator must be shown before the Court had jurisdiction. He pointed out that when the testator made his will he had maintained his daughter and her children for 13 or 14 years. During that time he had spent a great deal on medical attention for her. He knew she was a physical wreck and temperamentally abnormal. Yet he made a will leaving the whole income to the mother after telling his daughter that her mother would look after her. He knew the mother’s home and care would be best for the daughter, and wisely and justly made his will accordingly. Counsel contended the Court had no jurisdiction to grant Mrs. Henderson more than adequate maintenance. He suggested a fixed sum for medical expenses yearly. His Honour.: What do you consider is a fair and reasonable allowance to make? Mr. Nicholson said the offer made had been one involving maintenance, with bn alternative Of £4 a week, and, in addition, something for medical expenses. Regarding the suggested share of any future goodwill, or the proposal to alter the shares for the division of the capital, Mr. Nicholson submitted the Court had no jurisdiction. His Honour said he regarded the request to make a re-distribution of the ultimate residue on the death of the widow as being in the nature of an invitation to make a new will for the testator, and he did not propose to do that. What he had to consider was what provision would be adequate for the maintenance of Mrs. Henderson. He thought he should make an order for the payment to Mrs. Henderson of £5 a week out of the residue of the estate durinw her life, with leave to the trustees to set aside a capital sum from which the interest could be drawn. His Honour made an order in those terms, making provision that the costs of the trustees should bb paid out of the estate and that an allowance from the estate of 25 guineas (costs) and disbursements should be made to the applicant. Counsel agreed to submit a formal order later.