KNOTTY WILL RIDDLE

Taranaki Daily News, 17 September 1934, Page 2

KNOTTY WILL RIDDLE

AN UNFORESEEN DEATH,

SOUTH TARANAKI CASE. Some astonishment at the high costs entailed in interpreting the legal effect of the terms of a will (following the unforeseen death of a beneficiary before the testatrix died) was expressed by his Honour Mr. Justice Ostler in the Supreme Court at Wellington on Wednesday.

The cost of having the will interpreted amounted to £576 already, said Mr. P. S'. Broad, appearing for the Public Trustee.

“That is scandalously high for an estate of £9ooo,’’ declared His Honour, The case had been a long and intricate one on a novel and difficult point, explained Mr. A. K. North, Hawera. It was really a Taranaki case, but apparently the Public Trustee thought all such cases should be heard at Wellington. Despite Mr. North’s protest, the case was removed to Wellington. There was more to be said on that score than appeared. ' His Honour said he realised that the circumstances were special, and his remarks were meant to be general. A knotty and costly problem remains to be solved. Five lawyers argued pure law for two days in the Court of Appeal in December last to elucidate the question of what should happen to the share of capital and income left (under the will of the late Ellen Barnforth, Manutahi, Taranaki, who died in January, 1932), to one of three beneficiaries whose death left that share unprovided for. In respect of that share there was virtual intestacy.

Farms, freehold and leasehold, mortgages, and war bonds in the‘estate were worth about £9OOO. In her will the testatrix appointed the Public Trustee executor, gave certain legacies, and left the income from the residue to her adopted daughter, Tryphena Taylor, and her two nephews, C. E. and T. C. Richards, as tenants in common during the life of Mrs. Taylor. The will provided that after her death the residue should be divided between the two nephews. The difficulty arose from the death of T. C. Richards before Mrs. Barnforth. The question was: What should be done with the shares of capital and income given him?

Judgment of the Court of Appeal was given in March last and definitely decided who was to take the share of T. C. Richards (deceased) of the capital. Since then it has been suggested that the Appeal Court’s judgment did not determine who was to take his third share of the income. The Public Trustee accordingly moved the Supreme Court for directions as to the disposal of accumulated income. Argument was heard yesterday by His Honour Mr. Justice Ostler, four counsel quoting ancient and recent authorities. Mr. P. B. Broad appeared for the Public Trustee, Mr. A. K. North for Mrs. Tryphena Taylor (life interest beneficiary) and C. E. Richards, and Mr. C. H. Weston, K.C., with him Mr. Bishop, appeared for several next of kin.

Mr., Broad argued that the share of the income arising from the real estate of the deceased was to be regarded in law as real property and should go, in accordance with the Administration Act, to Mrs. Taylor, C. E. Richards, and the next of kin in equal third shares. Mr. North argued to the* same effect. Mr. Weston and Mr. Bishop, on the other hand, argued that the Court of Appeal had really dealt with the question and had ruled that the next of kin took the whole of the third share. If the Court of Appeal had not dealt with it, it should go to the next of kin. The question, was a substantial one and over £lOOO of accumulated income might be involved, said Mr. Broad. A strange sidelight of the case was that what is now a leading authority of English case law in reference to an aspect of the present issue arose out of the death of Lord Orford at Auckland recently. Lord Orford’s death created a problem of interpretation, the determination of which is now a legal beacon. Decision was reserved.