WILL DISPUTED

Press, Volume LXXII, Issue 21906, 6 October 1936, Page 15

WILL DISPUTED

'l* ' • 1 svt •' ‘ ft vaise .K&u&it sstim '' Revocation of the probate gftoted of the will of Eilzabeth Smith, .a spinster, of Christchurch, whose. e&tate, Was sworn at' £77,000 f was in an action heard in the 1 Supreme Court yesterday by his Honour Mr Justice Northcroft., Miss Smith died bn July 9, 1935, having no brothers or sisters, and both her parents being dead. All but £II,OOO of her estate was left in trust, the income to bo used for educational or charitable purposes. The plaintiffs in the action; which is ex* ptcted to last several d§ys, two of her nieces. Ohye Judge and Ivy Cookson, both of Christchurch, were the pxamtias, and Lie Guardian Trust and Executors’ Company of New Zealand, i»vd. t was the aefendant. Messrs H. Pi O’Leary* K.C. (Wellington), and -T. 3?. Cieary (Wellington) - appeared for. the plaintiffs, and Mr. H. % Barrowc-ough (Auckland) and Dr, - A. L. Hasiam (Christchurch) for the defendant company. , At the time the will was executed, on June 8. 1934, plaintiffs, claimed, Elizabeth Smith was not • of sound mind, memory, and understanding. At that date she was about 80 years old, and was suffering from senile dementia, and was so' impaired mentally ihat her memory was greatly affected, and she was unable to manage her affairs or form a rational opinion,. or to originate ideas of the state of hdr property or the claims of others on her bounty, and did not. understand, the dispositions of the alleged ; will or its effect. ■■■ ■ v ■■■ Protection Ordea Made For these reasons a protection order under Section 4 of the Aged and Infirm Persons Act, 1912, was made in respect of her estate in the Sjupreme Court-at Christchurchh on December 14, 1933. At the :ime the alleged will purported to have been executed Elizabeth Smith was a protected person within the meaning of the act, and so remained until the day of her death.. > For these reasons the court was asked to revoke the probate of the alleged will, to pronounce against its validity, and declare it null and void. .The statement of defence was a gen'eral denial, of the allegations. The wijl referred to appointed the Guardian Trust and Executors’ Company to be. executor and trustee. Bequests to a large number of relatives' and five friends amounted to a total of £10,600, and the following charitable bequests were ’ made;—-Christr' church Returned Soldiers’ Association £SOO, Sanatorium Service Society £3OO, Nurse Maude District Nursing Association £3OO, St. Saviour’s Guild Society £4OO, Salvation Army In Christchurch £IOO. The trustee company was directed by the will to hold the capital of the residue of the estate in. perpetual trust, and to distribute the income from time to time to such charitable or educational institutions as it thought fit. ~ . .... The case for the Hefence was taken first, Mr O’Leary claiming that the onus was on the defendant company to'uphold the will.

Hhaje Salesmen’s Activities In opening his'case, Or. Haslam traversed the statement of claim. Mu&, Smith’s testamentary capacity on June 8, 1934, was the vital point, he said. She had inherited in 1922 a large share cf her brother’s estate, for which the Guardian Trust and Executors Company was trustee, and she also had substantial means of her own. The Christchurch manager of the company an- o- the Sold. British Insurance Coi% pahy becam'e' acquainted With. MtsS Smith about this time, when she called to collect her dividends. At the - beginning of 1933 the manager of the company became concerned because Miss Smith had , been approached ..by representatives of' the. Investment Executive Trust, of New Zealand anp induced : by them to 'dispose of shafces in the South British Insurance Company and the New' Zealand Insurance Company to the value .of. £11,090, and to invest the money in the Investment Executive Trust. It was clear that Miss Smith had been prevailed on by the “high pressure’* salesmen agamst her better judgment' On June 20. 1933, the Guardian Tnlst and Executors’ Company obtained a short power of attorney,- but this proved unavailing because Miss Smith, in her own house, was not protected against the importunities of Salesmen. Later it was fouhd that, she had disposed of - more si -errand - invested in gold-mining companies: and a flax company. ■ Investigation showed that she had lost between £6ooo.and £7OOO in 12 After some time the Guardian Trust obtained... an order under the Aged, an Iqfirffl Persons Act, Miss Smith agreeing after discussion with his Honour Mr Justice. Ostler in -chambers. No restriction was made in that order on Miss Smith’s testamentary capacity. Malting the Will . The Guardian Trust proceeded to recover some of thd investments.** The manager of the trust suggested to Miss Smith that she should" make « will, ant 1 ii. March; 1934, she. agreed to do so. At the time it was thought that he* estate was between - £50.000. and £60,000,. but a year- later, after her death, it was -sworn at £77.000. It was suggested to. her that, she should leave the residue cC Her estate, after, making the specific bequests, to her relatives. • but she said that she nap alreadj’ provided for - them, and .that the residue should' go to charity. She said she was against, leaving her relatives too much money.; Miss S' iith -had lived- in very ascetic, fashion. It was. admitted that sqe had been see in ~ie streets picking up r ces o:k wood and paper, end fruit -which fell from.stalls. .This was probably an eccentricity, and. was no evidence -of'incapacity." Her untidy mannet of dressing* was in no .way evidence of, derangement. . In evidence. CharlcsrS. Thomas, barrister and - solicitor, described taking Miss Smith in .to see his Honour Mr .Justice Osier In chambers, and her agreement, to. the taking out: of * protection order Questioned by the Judge about selling shares and. buying others against advice, she had said that she found that -the share salesmen, and particularly one of them, had been able to get her -to do things against h-r will AJHer the interview witness had told her that she would have no further nefcd to worry, as, the vGuaraten Trust would take -sire of aH these financial matters, . Instructions Received The first instruction about the wßt was when the manager of Guardian Trust instructed him to draw Up a general residuary charitable bequest Later this bad been changed to provide for holding .the capital of-the resiHe had discussed with Miss Smith the various provisions made in her will r and satisfied himself that she knew what she was doing. Thequestion Whether; she was providing enough for her relativ.es was discussed. Witness'had suggested to the manager of the Guardiaflh .Trust that when the will was -signed Dr.. A. Baxter- should be present, and go through it with Miss Smith. He had in mind-the fact that the protection, order had been. made. He was amazed at' Miss Smith’s knowledge pf the family. She was able to go through the relationships and all tfie different members and-, their .calls on her. , 1 Cross-examined by Mr O’Leary, witness agreed'that 1 the will-was made Within six- months of the granting of the protection- order.- He .took the repp on sib ility of the will being the wIU of a person of sound mind; memory, and understanding. .: Mr O’Leary: Did. it occur to. you that not only should a doctor ’witness a will, but thnt she should be examined a doc^lbr?"' —- Witnesi; I arranged for Or.' Baxter to go through the will with hear, and