A WILL VOIDED

Dominion, Volume 12, Issue 251, 17 July 1919, Page 7

A WILL VOIDED

WAIRARAPA SUIT CURIOUS POSITION OP THE WIDOW PROBATE CANCELLED A judgment of considerable general interest was delivered by His Honour Mr. Justice' Chapman in- tho Supreme Court yesterday in a, will case emanating from the Wairarapa. The nlaintiff- was Evelyn May M'Laren, find the defendants Hugh Stanley M'Laren and Eobert M'Kenzie. In this action tho plaintiff* sought to havo cancelled the probate granted on December 22. 1918 of the will of Neil M'Laren. dated November 22, 1918, on the Ground that the will was not duly executed in accordance with the provisions of tho Wills Act, and that at the timo when he signed it testator was not nf testamentary capacity. In his judgment His Honour said: "Testator died on Mondav. November '25, 1918, three davs after the will was executed. He .was a -voung man in full health and vigour until a few days before his death. He was one of the thousands of the victims of the disastrous influenza . epi.demic which swept oyer New Zealand in the spring and early'summer of 1918. His death took place in the Town Halt, Martinborough, which had been toned into an emergency hospital to deal with the numerous cases arising in that district. Testator was a sheepfarmer, and his estate at the. time of his death was said.to ho worth'betweon' fifty and sixty thousand pounds, while tho income it yielded was nior'o than .£SOOO per annum. The will is propounded by tho executors, .Hugh, Stanley M'Laren, a. brother of testator, and Robert M'Kenzie, a. solicitor, who was not.then in practice,; but was enmloved by Messrs. Hollings and Prasnell. solicitors, • Mristerton. Mr. M'Kenzie had prepared tlm will.' It is oiiDosed hv testator's widow, who takes the whole income, subject to losing it in tho event of remarriage.- Tho testator's family consists'of his wife, who'is twentynine veais of age, . and one child,- . a daughter, Ngairo,- who is, I understand, five or six years of ago. It is quite evident that the plaintiff objects to and I think I may say, resents, the condition as to her'.remarriage. She prefers to take her share'of tho estate, worth .£IB.OOO or more, rather than a vear with this condition.-■ The-singuhr result is that from her point of view the will is not in her interest, while it would bo somewhat' difficult to assert that it is in her daughter's interest. If the mother' did; not "marry again the daughter might' well live- 'another, forty rears before she' derived the smallest benefit from hor father's bounty."

• His Honour dealt at very considerable leiicth with ithe evidence of the ..several ■witnesses. Dealing,with the evidence of Mr. M'Kenzie. His 'Honour said:."Mr. M'Kenzie expresses no doubt aB-to MLarohVability fully to understand the luisiness in haiid, and to give 'instructions for tho v will that was made. Some months bflforo he had. without giving any instfuotibne. discussed with Mr. • MTfefizii) the kind of will he wanted. When asked ivliat ho now' proposed, he said, 'Oh, it -will be just', as"• I told' you before." The wife can 'have the . income, awl ' "after her death, or if she remarries, Ngaire 'is to have everything." He, on the earlier occasion;, oxprosscd tho opinion that this (i.e., thu condition as to' remarriage) was right, and'said that ho did riot" want'to'keep the other man.. Ngaire was the only child, but Mr. M'Kenzie no doubt properly, though without express instructions, made provision for tho "event' of ; "there being others. ' He theft discussed • the subject of trustees,' and this was settled. Testator asked ■ Mv. M'Kenzie to act as one.' The only evidence of instructions to carry: on tho farm was contained, in the conversation as to-which ■ of his brothers was' the best to carry-it :on. Ho was-then asked if there was anything else he-wanted, to ■which- hp-ro- ■-' jHe'd'in". the" negative.'.'.On -this,.---Mri, /■'; M'Kenzie drew tlie.'will. , ''.v .• .-■ ;M*Laren i is hero represented as being in what -; may be called a sound.business condi- ' tidn, Able to give those • -instructions without prompting, and to discuss the question of 'the' relative fitness of several persons to act as trustees, Mr. M'Kenmb is, however) the'only-witness', who ; 'takes this favourable view of his condition'. . ~ . The so-called instructions •• nro obviously very meagre and exhibit . nt the best but little thought oh tho . part of the testator. . There was no renewal .of his. views as to remarriage, save • in the .sentence in which' he assumed that they were remembered, no provision for more than one child, no attempt to work ou.t the various contingencies-that . might arise. It seems to me Mr.' M'Kenzie omitted several of those precautions which, in dealing, with a man suffering from fever, a solicitor ought to take.- ■ . . He admittedly inserted something .in the will which was not included in the instructions. Then he. did not read over the will.to the patient, but relied on a sick man reading and understanding a legal .document, In other' words, ho relied implicitly on the patient understanding the whole will, and assumed . that he did understand it, and so missed a valuable test as to whether he did in fact understand it. ... "It must ho admitetd that a death-bed ', will containing trusts may ■ often'b& crudely prepared, and yot may'ho fiillj ndoptod by the testator, but, to my mind, this will 'could not have really reached the mind of the testator without raising further question. To deal with' those was not to be expected of.a man whom Nurse M'Whinhey describes as dazed when not.actually delirious. In the circumstances, I hold that it is not proved that the testator was of testamentary .capacity when tho will was signed, and I order that tho probata bo cancelled, and the will declared void. I think it n ■proper case in which to allow the costs of both parties as between solicitor and •client to bo taxed and paid out of the estate." . • • At the hearing Mr. M. Myers appeared for the plaintiff, nnd Mr. A. Gray, K.C., with him Mr. Rollings, of Masterton, ist the defendants. ■ .