The Gazette 1981

APRIL 1981

GAZETTE

The Intestate Testator?

in effect, farmed the family farm together. The farming activities had comprised a dairy herd, store cattle, a bull, sheep, and some tillage principally to provide food for the cattle but with some of the crop being sold to cover the cost of seed. Household expenses came from the creamery cheque and from mart cheques, whenever stock was sold. The Plaintiff received no wages from his father and if he or his wife required any money they asked for it. On occasion, the deceased told Plaintiff to take some money for him- self out of the mart cheque, when lodging it in the Bank. Being a dairy farm, the requirements of dairying and looking after young stock necessitated the Plaintiff working on the farm seven days a week for 365 days of the year. The Plaintiffs wife also played her full part in the running of the farm and, after 1969, only casual labour was employed. Over the years, the Plaintiff gradually acquired stock on his own account, which he maintained on the family farm and the Court accepted his evidence that at the date of his father's death, about 75% of the stock on the farm belonged to the Plaintiff. It was at all times represented to the Plaintiff by his father, the latest occasion being less than a week before his father died, that the Plaintiff would inherit the family farm and it was the Plaintiffs belief in this that gave rise to the proceedings. After his father's death, the Plaintiff and his wife stayed on in the family home and farm, to the exclusion of the two defendants. Both defendants had left home many years before and, in their respective ways, had made their own lives, with partial assistance from their parents. In 1978, the defendants proved the Will and obtained a grant of Letters of Administration with Will annexed. The action now described was brought by the Plaintiff under the terms of Section 117 of the Succession Act 1965, the Plaintiff arguing that the one-third share of his father's estate which he would receive as one of three next of kin would, in his special circumstances, represent less than proper provision by his father for him in accordance with his means and that the Court should award him a greater share of his father's estate. The defendants argued that the deceased could not be said to have died wholly or partly testate and that accordingly Section 117 could not apply. Subsections (1) and (2) of Section 117 of the Succession Act 1965 read as follows: (1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just. (2) The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.

by Charles R. M. Meredith, Solicitor

A commentary on the Judgment of Miss Justice Carroll in the Case of R.G. v. P.S.G. andJ.R.G., delivered on 20th November 1980. N EW law is always of interest; when that new law is brought about by the judicial interpretation of a statutory provision of relatively long standing, in circumstances that must have occurred many times in the past without serious question, the interest is greatly enhanced. In the case of R.G. v. P.S.G. andJ.R.G., it fell to Miss Justice Carroll to examine the intriguing question of whether a person can execute a valid will, die without having taken any action which could revoke that will and yet die intestate. The case is the more interesting by reason of the fact that Counsel for the three parties were apparently unable to find any case law to argue before the learned Judge, who was left to come to her conclusions upon the basis of her oyn interpretation of the relevant statutory provisions in the circumstances of the case. Those circumstances were as follows. The Plaintiff was the eldest son of a deceased testator, who died in 1976. The defendants were the two younger brothers of the Plaintiff. The three of them also happened to be the sole next of kin of the deceased and, in the events which had happened, the only persons entitled to share in his estate. The deceased, by his will dated 16th September 1960 appointed his wife to be sole executrix and universal legatee and devisee. His wife predeceased him by eight years and he did not make any other will. The deceased's will was therefore wholly inoperative and, as far as the disposal of his estate was concerned, that estate would de- volve as on intestacy. The case arose through the particular and individual circumstances of the deceased's three sons. The Plaintiff had at all times resided with the deceased and the de- ceased's wife (Plaintiffs mother) on the family farm. When the Plaintiff married in 1965, his wife had moved into the family home. The deceased and the Plaintiff had,

These Subsections must be read in the general context of Section 109(1) of the Act, which provides:— I 13