WILL SET ASIDE

Rotorua Morning Post, Volume 1, Issue 19, 15 September 1931, Page 3

WILL SET ASIDE

beneficiaries' wish LATE MR. E. J. ROBERTSON'S E STATE HAMILTON, Monday. Before Mr Justice Smith at the Supreme Court to-day Mrs Edwin Robertson and her son Edwin James Robertson applied to the Gourt to decree as invalid the last will of the late Mr Edwin Robertson and to grant probate of a prior will made in 124 with codicil made in 1927. Mr J. D. Davys, who appeared for the applicants, said that the deceased was a keen business man and by dint of hard work and careful investments had amassed a fortune which at the date of his death was valued at between £18,000 and £20,000. In 1924 Mr Robertson had carefully planned out a will fully providing for his wife and children. He went to considerable trouble over the document whic|h provided for every possibly contingency. A few years later he purchased a farm near Cambridge for his son-in-law, Mr. Cupples. On February 10, 1927 he made a codicil to his will adjusting the shares of his children in view of the purchase of the Cambridge farm. He then set about the purchase of a farm at Matamata, for his son Edwin James Robertson. Almost in the middle of the transaction, while staying at Matamata, he was seized with a sudden illness and brought back to Rotorua almost in a dying condition. 0 His one thought then was to adjust his will in view of this recent farm purchase. His solicitor at that time was in Sydney and he would not call in anyone else. He obtained a will form and his wife wrote out what she thought at the time were his wishes,' namely, to leave everything to her so that she could, in view of the altered arrangements, adjust the snares between the children. Unfortunately the instructions were in error wrongly carried out and the widow only left herself a life estate in this "home made" will. There were, further, several other defects in this will. Mr Robrtson recovered shortly after and always intended to adjust his affairs and make a new will, but death overtook him before he carried his intention into effect. The Court would be asked to set aside this last will on the ground that at the time it was made the testator was seriously ill and by reason of his health at the time was not fully able to grasp the nature and extent o,f his property and he had at that time no testamentary capacity. Further that his last will did not express his true intention. By consent of all the beneficiaries evidence by affidavit was filed supporting this view. Mr McMullin (Hamilton) who appeared for Mr Eric Robertson and Mrs Cupples, said that he had gone very fully into the whole position and found it" was the unanimous wish of the whole family that this last will should be set aside and that it was in the interests of them all that the previous will and codicil should stand. He quoted numerous authorities on the question at issue before the Court. His Honour reviewed the position at length and made an order declaring the last will made on July .28 invalid on the ground that the testator, by reason of his illness was not of testamentary capacity. His Honour granted probate of the prior will dated August 13, 1924 and the codicil dated February 10, 1927. -