WILL IN DISPUTE.

Auckland Star, Volume LVII, Issue 9, 12 January 1926, Page 7

WILL IN DISPUTE.

WERE WITNESSES PRESENT ? RESERVED JUDGMENT GIVEN. An interesting reserved judgment was , delivered in the Supreme Court this . morning by his Honor, Mr. Justice j | Reed, in the case, Adolie Hilda Cunnold . j and others v. Ambrose Noel Smales and ; another, which concerned the question , of the validity of the will of Elizabeth ' Smales, deceased. Mr. Meredith ap- ! peared for the plaintiffs, and Mr. West > for the defendants. His Honor stated: — "The plaintiffs sue for revocation of the probate of the will of Elizabeth Smales, deceased, and ask that the court should pronounce against the said will and declare the same null and void. The ground alleged is that it was not executed with the formalities required by the Wills Act, that is to say that the signature of the testatrix was not made or acknowledged by her in the presence of two witnesses present at the same time. The will contains a proper attestation clause and is signed by the testatrix and by two persons as witnesses. It. is not suggested that the I will does not express the wishes of the j deceased; there is, no allegation of fraud ! or undue influence, nor is it suggested that the testatrix was not sound in body or mind. The plaintiffs rely on the evidence of one of the witnesses to the will, Campbell, who denies that the other witness, Findlay, was "present when he affixed his signature to the will, supported by the evidence, in this respect, of a witness, Miss Beatrice Smales, a daughter of the deceased and who will principally benefit by the will I being pronounced against; they also I point to the alleged unsatisfactory cviI dence of Findlay as to due execution. j "The position in the present case may be summed up as follows: The testatrix ] unquestionably intended- the instrument to be her will and to be effectual las her will. She was conversant with j the formalities necessary to constitute its due execution as a will. The witnesses were her own servants, working about her place, 'and whose time she could command. There was no necessity for any haste in having the will executed- Why then should she have risked making the whole transaction idle and useless, and rendering her wishes liable to be absolutely frustrated by neglecting to have two witnesses present when she executed it? These are considerations to which it is said undue weight should not be attached, but that the court should not lose sight of them. When, however, there is added to these circumstances the unsatisfactory nature of the evidence against due execution I think my duty is to c pronounce in favour of the will There will be an order, therefore, pronouncing for the validity of the will, j and decreeing probate thereof in solemn j form of law." j Costs are to be taxed.