FATHER AND SON DID NOT AGREE.

Star (Christchurch), Issue 18466, 18 May 1928, Page 9

FATHER AND SON DID NOT AGREE.

SON WAS CUT OUT OF PARENT’S WILL.' ASKS FOR PROVISION UNDER FAMILY ACT. A,case arising out of the will of Mr Charles Lewis, formerly a Canterbury member of Parliament, who went to live at Waipukurau, Hawke’s Bay, and died there, came before Mr Justice Adams to-day. It came up in the form of an originating summons under the Family Protection Act. The plaintiff was Brian Llansanwyr Lewis, of Dannevirke, son of Mr Charles Lewis, farmer. The defendants were: George Gould and Frederick Maurice Warren, Christchurch, merchants, executors and trustees of the will; Jeasie Lewis. Waipukurau, widow of Charles Lewis; Helen Jessie Pedler, Dannevirke, wife of Richard St J. Pedler; Marion Gertrude Baker, wife of Horace M. Baker. # Makaretu, farmer; Charles Llewellyn Lewis, Makaretu, farmer; Annie Ethel Buchanan, wife of John Buchanan, Waipukurau, farmer; and Herbert Halswell Lewis, Waipukurau. farmer. It was claimed that Charles Lewis’s will failed to make adequate provision for his son Brian, and an order was asked for directing the trustees to set apart the sum of £4OOO out of the estate and to pay the annual income to Brian Lewis. Mr F. S. JWilding appeared in support of the application, and Mr Brown for the trustees. Mr Wilding said that Mr Charles Lewis left an estate worth £14,000. He was survived by his widow and four daughters and three sons. During his life each received about £SOOO. A farm was bought for Brian in the North Island, but he had lost the whole sum. He was thirty-six years of age and bad nothing. He received nothing under the will. All the other members of the family felt that Brian had been treated very badly. They agreed that he should come in and share with them. They signed an agreement, subject to the Court’s approval, and an applica tion now was made for an order setting aside £4OOO in favour of Brian, in terms of the agreement. In reply to his Honor, Mr W ilding said that two of the daughters had children under fifteen years of age. His Honor: How can it be to the benefit of these children if £4OOO is taken out of the. estate? I wish to know the amount of their interests. I do not see how I can arrive at the con elusion that it is for the benefit of those children to make the order. Mr Wilding said that the order was asked for under the Family Protection Act in view of Brian’s circumstances. The other members of the family said that they considered it a fair thipg to do. His Honor: You cannot do what i® called fair under the Family Protection Act. Under the Act, all the Court can do is to make an order to supply inadequate provision by a testator for somebody to whom he has a duty. The Court cannot “do the fair thing.” which, in plain terms, would be making a new will. Mr Wilding said that Brian saw war service, was trained to farming, and lost every sixpence on the farm he had bought. His Honor: Those were things the testator might have considered. The other members of the family might wish to correct the position, but it is no part of the Court’s duty to correct it under the Family Protection Act. You are asking me to re-form the will. You are not proving that a mistake was made. Mr Wilding: No provision whatever was made for this son. Mr Lewis quarrelled with this son when he made the will. His Honor: Unless all the parties are represented, it is impossible for the Court to make an order. Mr Wilding asked, in the alternative, for an order that such provision as the Court thought fit should be made out of the estate in favour of Brian Lewis, and that service of the summons on defendants should be dispensed with. He asked that the infant children—Mr C Lewis’s grandchildren—should be represented by their parents. His Honor: The parents already have agreed to the arrangement to give Brian £4OOO. The children must have independent representatives. The duties of guardians ap litem are more serious than seems to be generally tealised. It is their duty to look up the facts, and to come to the Court with information that will assist it in determining whether or not an application is in the interests of the infants concerned. You must take the usual course. The persons appointed must be independent persons. I am afraid I can do nothing further. The first part of the summons clearly is short' of the Court's jurisdiction, and when it is properly before me I will consider the merits of the case.