OLD MAN’S WILL.

Taranaki Daily News, 26 February 1921, Page 6

OLD MAN’S WILL.

ALLEGED UNDUE INFLUENCE. APPEAL OF NEPHEW DISMISSED. CASE OF TARANAKI INTEREST. One of the longest judgments given in the Court of Appeal in New Zealand was delivered by his Honor Mr. Justice Chapman this week, on behalf of a majority of the Court in the case of Peter McDonald v. Elizabeth Valentine and others. This was an appeal from the judgment of Mr. Justice Sim in an action by the appellant to obtain probate of an instrument purporting to be the last will of one Archibald McDonald, in which the plaintiff (Peter McDonald) was named as sole executor. Under this instrument, if probate were granted, the plaintiff, nephew of the deceased, would take onehalf of his property, the other half in equal shares going to James Anderson and Samuel Anderson, the 4wo stepsons of the deceased. The respondents—defendants in the original case—were nephews and nieces of the deceased, chilsdren of another brother, and cousins of the plaintiff. The plea of the respondents in answer to the claim of the appellant was that the deceased, at the time the alleged will was purported to have been executed, was not of sound mind, memory, and understahding. and that the execution of the will was obtained by the undue influence of the plaintiff, and that the deceased at the time did not know and approve of its contents.

The case at the time of hearing ocfeupied the attention of the Court for several days. His Honor Mr. Justice Sim decided in favor of the defendants. The plaintiff appealed, and the case on appeal was heard by the Chief Justice (Sir Robert Stout) and their Honors Sir Bassett Edwards, Mr. Justice Chapman, and Mr. Justice's. Herdman. In their judgment the Court of Appeal were equally divided. The Chief Justice and Mr. Justice Herdman held that the appeal sAould be upheld, Mr. Justice EdwardsSjid Mr. Justice Chapman that it shoulcK bo dismissed. In such a juncture the ruje provides that the judgment of the original judge shall stand; ''he becomes, as it were, a member of the Court of Appeal, and constitutes the majority of one. The appeal, therefore, of the plaintiff was dismissed. The judgment of Mr. Justice Edwards dismissing the appeal extends over 68 closely typewritten foolscap sheets, and deals with the case most exhaustively, both from the pointe of view of fact and of law.

In reviewing the evidence, his Honor said that the will propounded by the appellant was dated July 10, 1916, the testator being then eighty-three years of age. He died on March 3, 1919. The testator was one of the early settlers, a Highlander, who had, in his earlier years, led an adventurous and. more or less, nomadic life, a Crimean veteran, and one who went through the Indian Mutiny. He was at sea for many years, on the Bendigo diggings in the gold rush of the 'fifties, and at Gabriel’s Gully and the West Coast in New Zealand. About 1876 he took up bush land nfear Inglewood, in Taranaki. He was a man of considerable wealth in his later years. Summing up the evidence, his Honor said that at the time he alleged to have made me will, his eyesight ( was so bad and his perceptions so dull, that he could not find his way about the small town of Stratford, which he knew well, and where he owned a house. The earlier will, on which the respondent relied, was made in 1912. In conclusion, his Honor held that, wtien the testator made the will in favor of the appellant, he was practically blind, residing in the house of the .appellant at the Hutt, and dependent on him and his family for guidance and assistance. The appellant had, a year before, possessed himself of the whole of the testator’s liquid assets, and received the whole of the income derived by the testator from investments. The testator had spent the last forty years .of his life in Taranaki, and had no friends in or near Wellingon or the Hutt. It was impossible to say, held his Honor, that the testator at the time when he executed the will was capable of recollecting who his relations were, of understanding their respective claims upon his bounty and o>f deliberately forming an intelligent purpose of excluding them from any share of his property. The burden of proving that the testator was capable lay upon the appellant; he had failed in the proof, and, having failed', the will, said his Honor, must fail also, in his appeal. His Honor held that the appeal should be dismissed with costs on the highest scale.