SUPREME COURT

Dominion, Volume 10, Issue 3016, 1 March 1917, Page 9

SUPREME COURT

RESERVED JUDGMENTS CLAIM UNDER FAMILY PROTECTION ACT. Mr. Justice Chapman delivered judgment iu Uio Supremo Court yesterday upon an application, under tho family I'rotection Act, by John Hay (Glareville). His Honour stated that the claim was for additional allowance under the will of Thomas Hay, deceased. The estate ■was .£IO,OOO. The applicant was an only eon. His mother, testator's widow, was amply provided for, and was still living. Provision was made for applicant's children. He was 41 years of age and an able-bodied labourer. Tho outstanding fact was that applicant was a chronic drunkard. He had attributed this to his up-bringing. His Honour held this suggestion to be. unfounded. Mr. Blair had argued that applicant should bo regarded as a man suffering from a chronic disorder. His Honour could not, however, make him an allowance out of property belonging to other members of the family, on the assumption that this was to be recognised as a fixed condition, as if the applicant were maimed or insane. It would be a novel use of the powers of tho Act to relievo the 6on of his burdens, when the only result would be to set free his resources to bo spent in drinking. The Court, in such cases, was asked to make food some failure on the part of the testator, to perform his duty. It seemed to 'His' Honour that testator had most thoughtfully endeavoured to do his duty towards applicant. It would, be an unwise and un.fu6t application of the powers conferred on the Court to take away from others, perhaps from applicant's own children, property which' belonged to them,' in order to assist an able-bodied man with the habits of plaintiff. The summons must be dismissed. ....

SOLDIER'S UNSIGNED WILL. POWERS OF PUBLIC TRUSTEE. His Honour also delivered an important judgment affecting the matter of soldiers' wills. His Honour had been asked by tho solicitor for the Public Trustee (Mr. J. W. Macdonald) whether the Public lrusteo can, under Section 18 of the Amending Act of 1913. elect to administer the estato of a soldier who has r left an unsigned will; the circumstances being such that the Court, if applied to, would admit it to probate. His Honour eaid that the powers conferred by Section IS wero very extensive. The Public I'rusteo was empowered where a person had died testate, and ho was entitled to probate, but no grant of probate had been made to elect to administer such person's estato where it was estimated by him that the estate did not exceed £400 in value. In cases to which that applied, the Public Trustee simply 'filed an election to administer, which was taken to effect proof of the will and rendered probato' unnecessary. This the Public Trustee did. "After due inquiries," an expression which aesumed that ho would make a judicial investigation in order to ascertain whether the will had been duly executed. Since 19U tlie. Court had, under the special reservation in Section 11 of tho Wills Act relating to such cases, granted many probates of 6oldiers' iville unattested, even unsigned, and in some cases made by word of mouth only. The question was now raised whether the Publio Trustee could elect to administer in the case of an unsigned will. The opening words of Section 18 were certainly wido enough to include anything' that might be accepted as a will, but it was obvious that there were restraining words in the section. The Public Trustee' as a condition was charged with tho duty of etatine in the election that ho believed that the document which he annexed to it was tho testator's last -trill. That, his counsel admitted, excluded a verbal will, which was not a document, and could not be annexed, His Honour was satisfied, however, that ilmt was not tho limit of the restriction. A signed, but unattested will was a complete document, and whon signed had in those cases very much the samo valuo as a holograph will has in the countries whoro such wills aro permitted. An unsigned will was a mere piece of evidenco to be connected by means of other evidence or of presumptions with an act of the testator, whereby he declared that it contained hie will. Ho could not say that it was a document in tho sense in whioh the expression was hero used. It was not a document, and, construing the Act as a plain man with an ordinary knowledge of English would Construe it. it was not executed. Such wills must therefore be presented for probate in the ordinary way.