DISPUTED WILL.

Taranaki Daily News, 20 September 1921, Page 6

DISPUTED WILL.

A TARANAKI CASE. CONDITION OF THE TESTATOR. WILL HELD INVALID. An action for revocation of a. will on the grounds that the testator, an elderly man, was of unsound mind when he signed the will, was heard in the Supreme Court, New Plymouth, in August, and His Honor Mr. Justice Salmond recently gave judgment to the effect that the will was invalid. The plaintiffs in the case were Alary M. Brockett and Frances A. Randerson, and the defendants were John W. Willis and James Byrne, of Kapuni, the executors in the estate of the late John Willis. In addition to the contention that the testator was not of sound mind it was also alleged that the will Was obtained by the undue influence of John W. Willis. In his judgment His Honor summarises the facts o-f the case as follows:

The testator’s estate was worth about £7OOO. His age at the date of the will has not been definitely proved, but he was an old man approaching his seventieth year, and had lived for many years with his sister. By a former will executed on July 4, 1898, he had left all his property to his sister and had appointed her as his executrix. In October, 1915, Margaret Willis lay upon her death-bed and sent for her solicitor, to whom she gave instructions for her own will. At the same time and place, and in the presence of the same persons, John Willis executed the will now in question. It had been prepared at the same tyrne as the Will of Miss Willis, and was word for word identical therewith. By these identical wills all cash in hand or in any bank was-divid-ed in equal shares between seventeen beneficiaries, being a surviving brother of John and Margaret Willis and sixteen named nephews and nieces. A legacy of £260 was given by each will to a niece named Mabel Willis, and all the residue of each estate was left to John William Willis, a nephew, who was also appointed as one of the executors. The effect of these dispositions was that under the ■ will of John Willis his nephew and executor, John William Willis, became entitled to £423’6 out of the total estate of £7OOO.

MEDICAL CONDITION. After reviewing the explanation as to how the two wills were made at the same time, His Honor says: “The evidence of medical witnesses and others satisfies me that at the date of this transaction John Willis was of unsound mind to such an extent as to be destitute of testamentary capacity. On February 18, four months after the execution of the will, the testator was examined as to his mental condition by two medical men at the instance of certain relatives. These gentlemen were called to give evidence as to the matter. Both of them expressed a confident opinion that John Willis was in February, 1916, of unsound mind, suffering from delusions and loss of memory, due, in all probability, to senile dementia.”

“ . . . . This and other evidence of insanity in and after February, 1916, is not seriously disputed by the defendants. Their contention is that whatever the testator’s condition ’may have been in February, 1916, t he was of sound mind and of testamentary capacity four months earlier, in October. 1915. The medical testimony is that, this is possible, though very highly improbable. It is necessary, therefore, to ( consider the evidence as to his condition at earlier periods. On November 11, 1915, less than three weeks after the execution of the will, Mr. Bennett (Willis’ solicitor) and the two defendants made arrangements whereby John Willis handed over the entire management of his property to the defendants. For this purpose he was brought to Manaia, where lie signed two powers of attorney authorising the defendants to operate on his bank accounts. He came with the defendants and Air. Bennett, to these banks and expressed to the managers his consent to the arrangements proposed. These bank managers gave evidence before me, and stated they observed nothing abnormal in his mental condition. Whether his condition was obvious to a casual observer or not, it is clear from this transaction that the defendants were well aware that within three weeks after the execution of the will John Willis was unfit to be trusted with the management of his own affairs. His sister’s guardianship and control having been withdrawn by her death, a substituted guardianship and control was recognised as immediately Accessary. In January, 1916, the defendants engaged a male attendant to look after John Willis, and. the testator remained under this man’s charge until his death. Alargaret Willis died two days after the execution of the will. There is direct evidence as to the testator’s mental unsoundness at the date of her death

I see no reason to doubt this evidence, and it establishes the fact that within two days after the execution of his will he was suffering from pronounced dementia, delusions and loss of memory. HIS HONOR'S CONCLUSIONS. After reviewing the case His Honor remarks: If this and other evidence to the like effect is to be accepted as truthful, and I see no reason why it should not be, it is conclusive that the insanity from which John Willis was suffering in 1916 was not a sudden development, but existed at, and prior to the date of the execution of his will in October, 1915. It demonstrates also that his insanity was so far advanced and of such a nature to deprive him of testamentary capacity. He had so far lost his memory that he did not know his own relatives or remember their names. It is true that the will is, in its provisions, a rational testamentary disposition. This, however, is sufficiently accounted for by the fact that it is merely a copy of the will prepared for and executed by his sister, Alargaret. I am satisfied that it does not represent any spontaneous and intelligent act of testamentary disposition on the part of John Willis, but is merely the outcome of the suggestions and influence of his sister upon his weakened and degenerate mind. The unexplained circumstance that he had to be taken into his sister's bedroom in order to sign the will in her presence is very significant in this connection. The document so signed, represents. 1 think, not any conscious and real testamentary purpose of John Willis, but merely the purpose of Alargaret Willis to dispose of his estate as she thought fit, as well as of her own, for the benefit of a favorite nephew, It is true that the defendants have produced a considerable volume of evidence to the effect that the testator #as of miftd ftt && gate the

execution of his will, and that his insanity was of sudden development, subsequent to that date. After quoting the evidence of the solicitor, doctor, and executors on this point, His Honor remarks: “With respect to this and other similar testimony of the testator’s soundness of mind, it is necessary to draw the distinction 'between the testimony of persons who were in constant contact with him, and the testimony of strangers, who saw him casually and intermittently. As to the first class of testimony, it is sufficient for me to say I do not believe it. As to the second, it is sufficient to say that John Willis\ incapacity was not such as to be necessarily visible or obvious to the casual observer when attention was not directed to Hie matter.

“There will be a declaration that John W'illis was not possessed of testamentary capacity at the date of the execution of the -will of October 22, 1916, and that the will is invalid accordingly. The grant of probate on September 24, 1919, is revoked.”

His Honor considered there was no reason why defendants should not pay costs. The litigation had been rendered necessary by the act of defendants in proving and maintaining a will they knew, or ought to have known, to be invalidated by the testamentary incapacity of the testator. Costs were allowed to plaintiffs on the highest scale, as if £4660 was claimed.