SUSPICIONS CAST ON WILL

Press, Volume LXXII, Issue 21908, 8 October 1936, Page 9

SUSPICIONS CAST ON WILL

ACTIONS OF WITNESS QUESTIONED

DISPUTE OVER ESTATE OP £77,000

PLAINTIFFS’ CASE BEGUN

Suspicions which he claimed were suhicient to invalidate the will of Miss Elizabeth Smith, of Christchurch, who left an estate of £77,000, were outlined by Mr H. F. O’Leary, K.C., opening the case for plaintiffs yesterday in the Supreme Court action seeking to revoke the probate of the will. Mr O’Leary concluded his cross-examina-tion of Percy Harold Harris, manager of the South British Insurance Company, and local manager of tne Guardian Trust and Executors’ Company of New Zealand, questioning the witness’s action in taking tne execut-on Oi tne wni upon mms-lf. Ali but £ li’.vitio 01 tne estate was left in trust, tne income to be applied, at tue discretion ox tne defendants, the Guardian Trust Company, xor cnant-* abie or educational purposes. Plaintiffs are Olive Juoge ana ivy Cookson, jtwo of the testatrix’s nieces. His Honour Mr Justice Northcroft prodded, ivxessrs O’Leary and T. P. Cleary (Wellington) appeared for plaintiffs; and Mr H. E, barrowclough (Auckland) and Dr. A. L, Haslam (C/xristchurch) for the defendant company. Plaintiffs claim that when her will was executed, on June 8, 1934, testatrix, then 80 years old, was not of sound mind, memory, or understanding, and that she was suffering from senile dementia. On these grounds the court was asked to revoke the probate of the will, to pronounce against its validity, and declare it null and void.

“Suspicious Circumstances”

The defence completed, Mr O’Leary said that at that siage he would content himself with submitting that not omy was the onus oi proving the will on the propounders of it, but also tnai there were circumstances of the making of the will such as to excite the suspicion of the court. He cited authority for the court not pronouncing in favour of the will till the suspicion was removed.

“I submit,” he said, “that the outstanding suspicious circumstances are these:— “First: An order was made in respect of the testatrix under the Aged and Infirm Persons Act some six months before the will was made, and she was the subject of the order at the time the will was made. “Second: Section 26 of that act provides for the confirmation of the will of such a person by the court; and the attention of the advisers of those now propounding the will was directed to that section within six months.

“Third: No independent Instructions were given by Miss Smith to her solicitors.

“Fourth; Instructions for the wifi came from Mr Harris, who in this case represents the Guardian Trust Company, which benefits immediately and in under the will. He took charge in tfie makingfaf the will, while it was proceeding and when it was signed. "Want of Care" “These are outstanding points of suspicion which place a very heavy onus on the propounders of the will,” Mr O’Leary continued. ,‘T do stress at this stage that there was a great want of care in the preparation of the will. The solicitor concerned should himself hatfe taken the matter in hand. He should have had a medical examination made, and should have gone to the court in any event unuer section 26 of the act.”

Continuing his cross-examination of the witness Harris, Mr O’Leary asked about the sending by Harris of a letter with a draft of the will to Mr Ward, manages of the Auckland office of the Guardian Trust Company,

Mr O’Leary: What were you sending it to Mr ward for, for his approval? It wasn ? t his estate.

Witness replied that he had kept in touch throughout with his head office.

Mr O’Leary referred again to a letter written by witness to Mr Ward, asking for an explanation of the phrase, “the arrangements made.” Harris answe red that these were the arrangements about the will. ‘‘l suggest that this is the crowning effort,” said Mr O’Leary, quoting as follows froip a further letter from witness to Mr Ward, dated June 8, 1934: “The will drafted by Mr Thomas, as arranged by myself, has now been signed by Miss Smith.” “Why—it’s your will, Mr Harris,” counsel exclaimed. Witness said that it was clearly understood that he was acting in Miss’ Smith’s interest.

Mr O’Leary asked if witness knew of £SO which had been stolen from Miss Smith’s house, money which she was presumed to have hoarded. He mentioned a second robbery in which Miss Smith had lost her store of whisky, consisting of six bottles. “So things weren’t improving," counsel remarked. “You saw the house when she died. It wafe in a shocking condition, wasn’t it?”—Yes. Witness added that the disorder in the house was practically confined to the kitchen.

“Jekyll and Hyde”

Mr O’Leary; Do you know that she had little education, Mr Harris? Can you give us more particulars than to say that she was an educated woman? Witness said he had it from one of the relatives that Miss Smith had a very fair education. She showed it in her conversation.

Henry James Biggins, insurance accountant, of Christchurch, said that he had been 28 years with the Standard Insurance Company, ■ and had known Miss Smith for about 25 years. Miss Smith had been very methodical in collecting her dividends. Witness was very impressed when she had last, called, in March, 1935, with her grasp if business affairs. Witness said that Miss Smith had seemed “a sort of Jekyll and Hyde.” When she came into the office she was always smartly dressed. “In the evenings she was quite a different woman. I was almost ashamed to speak to her—for fear of embarrassing her.”

Witness had seen Miss Smith on one occasion five years ago, rummaging in one of the wire rubbish-baskets in Victoria square. To Mr Cleary, witness explained that Miss Smith had come to the insurance office to see if a dividend warrant had gone to the Guardian Trust Company. Mr Cleary: Oh—she was keeping her eye on the Guardian Trust? Witness: She used to check up. William Francis Tracy, solicitor of Christchurch, said that Miss Smith had corns, to him with Mr Harris, to see about her having been persuaded to exchange shares in the South British Insurance Company, for Investment Executive Trust debentures. Witness had no doubts of Miss Smith’s ability to express herself or to understand what whs put to her. To Dr. Haslaro, witness said that the testatrix struck him as a tired woman.

mentally, very worried that men could persuade her to part with money. This evidence closed the case for the defence.

Delusion of Poverty

William Sidney Smith, an artist, of Sumner, a nephew of the testatrix, said that he had known her since he was eight years old. For 20 years he visited her every week, and in the last three years every month. Witness said he had seen his aunt dressed in “filthy rags, in strange contrast to her younger days, was very dainty, neat, and clean.’ Mr Cleary: She did not look after herself personally? Witness; No, she was in a shocking state.

Witness said he had never known his aunt write a letter in her life, or to answer a letter. It was a very sore point with her that she had no education to speak of. In latter years her memory for people and places seemed to be failing fast. Her speech was rather disjointed and inclined to be rambling and dreamy. , . , . His Honour: At what stage is this that you are speaking of? —About 1933. Witness continued that it was “utter nonsense” to suggest that his aunt had formerly been a good business woman. She seemed to suffer under the delusion that she was poor. Recalling references to Mr Harris by the testratrix, witness said that his aunt had once said to him: “Mr Harris is collecting the dividends on my shares. I don’t know what he is doing with the money, and I don’t know where I stand.”

“Worrying Me”

Later, Miss Smith had said: “Mr Harris wants me to hand my affairs over to him for all time.” Witness had replied, “No, I wouldn’t do that.” Later again, said witness, his aunt had said to him that she had signed a paper. Her account of it had been rambling, but she said that something had happened “in camera.” She told witness: “The judge asked me if I understood what I was doing, and I said, ‘Yes.’ ” Witness had asked why she had said this when she had not understood, and she had replied, “The judge was so nice to me that I couldn’t say ‘No.’ ”

Before the will was made, testatrix had said to witness: “Mr Harris is worrying me about a will. I don’t know what to do. What will happen if I don’t?”

Witness had answered that without a will her money would probably go to her relatives, and his aunt had appeared to be satisfied with this probability. After the will was made, witness gathered that she was not satisfied. She asked if alterations could be made, and witness had told her that they could be made by additions (meaning codicils) to the will. Mr Barrowclough asked if in the last three years of her life Miss Smith had failed in mind, becoming confused. Witness: Yes.

Mr Barrowclough; I take it that you would have discussed her failing condition with other members of the family, while she was alive?— No. Witness added that he had spoken to other relatives of the desirability of his aunt having someone with her in the house. Mr Barrowclough: Did it never occur to you that something ought to be done about the old lady?— No. Auntie would have thought I was being officious.

Mr Barrowclough: She would have resented it?— Decidedly. ' She liked to run her own affairs?— Yes.

Appeared Dissatisfied

Witnes said that she evidently did not want to make a will, and she was bring worried by Mr Harris to make one.

Mr Barrowclough: Did you think she had the mental capacity to make a will?—lt didn’t occur to me. You knew she was about to make a will, and you knew that a person of unsound mind could not make a will; and did it occftr to you then that she was of unsound mind so as to be unable to make a will? —I can’t say it did.

Were you interested? —No. I’m a bit of a philosopher. I’m interested in art. I have enough to live on.

Witness continued that from what he knew of his aunt, he thought she would not make a will unless she was forced to do so. Mr Barrowclough; When you learnt that she had made a will, didn’t it occur to you that Mr Harris had done a very wrong thing?—l thought he would have better left it alone. Did she sav Mr Harris forced her to make a will?— No.

Did she say she had been worried into it?—No, not afterwards.

Was she satisfied? —No. apparently not. because she wanted to make alterations.

You do not want to suggest to the court that she was very worried about the will after it was made? —No. To Mr Cleary, witness said he felt sure his aunt had no idea of the extent of her estate, considering the state of her memory and her lack of any sort of bookkeeping Sorting Out Rubbish William Harris, a butcher, gave evidence that he had known Miss Smith for a number of years. She - ould usually come into his shop with a threepenny piece wrapped up in a handkerchief. She was in the habit of hiding pieces of meat under her skirt, and witness usually gave instructions that she was to be watched if the shoo was busy. He believed she had a pocket under her skirt.

Jane Pratley. proprietor of a cake shoo in Colombo street, said she thought that Miss Smith had had only one outfit of clothes in the last five years. This was out of repair. ragged, worn, and very dirty. Almost every night in the last four years witness had seen her at rubbish tins, sorting them over, witness supposed, to see what she could get. Theresa Hunter, wife of John Gillies Hunter nroorietor of a confectioner’s shon in Manchester street, gave similar evidence. M»-s Ivy Cookson. one of the plaintiffs, said tha + she had received £IOO under the will. The cheque received for the amount from the Guardian Trust Companv had been returned. rThe accumulations in the house of the testatrix were chiefly rubbish — skins, bits of bread, bottle-caps, pieces of rag, string and paper, and very dirtv handkerchiefs. Witness, who had visited the house frequently, had never seen a fire there, in winter or summer.

“Didn’t Want to Make Will”

On one occasion, Miss Smith had returned from seeing Ir Harris, weeping, saying that she had wanted to send some money to a nephew who was ill in hospital in New Guinea, but that Mr Harris did not want her to. She was very upset about it. Cross-examined bv Mr Barrowdough, witness said 'that Miss Smith had said to witness after the will had been made; “I didn’t want to make a will, but Mr Harris wanted me to.” Mr Barrowclough: Did she complain about Mr Harris?— She said that he bossed her.

Witness added that Miss Smith had said, referring to Mr Harris, “He thought it was his money.” Mr Barrowclough: When did you think of that? Because you didn’t think of it when you were answering my learned friend.

Mr O’Leary; If you go on crossexamining, you will get a whole lot more.

His Honour (to witness): Did your aunt know that you and your husband were in poor financial circumstances? —No.

Witness added, in reply L further questions by his Honour, that she had never told her aunt of her and her husband’s straitened circumstances.

The court was adjourned till 10.15 to-day. •

M. Alexandre, formerly of Paris and Vienna, who is broadcasting over 3ZM, will give a pubh lecture at the Lecture Hall of the Public Library tonight, at JJ o’clock. M. Alexandre is an authority on psychology and graphology. He will give demonstrations from handwritings, written by several people on the blackboard, and explain why handwriting reveals character and what benefit the individual obtains by this science.