WILL ASSAILED

Press, Volume LXXII, Issue 21909, 9 October 1936, Page 8

WILL ASSAILED

MENTAL CAPACITY OF TESTATRIX

DISPOSITION OF ESTATE OF £77,000

COURT CONCLUDES HEARING OF EVIDENCE

Stating that the final decision might not rest with the Supreme Court, his Honour MY Justice Northcroft yesterday adjourned the hearing of the case in which revocation is sought of the probate «*£ the will of Elizabeth Smith, of Christchurch, who died in July, 1935, leaving an estate of £77,000. His Honour instructed counsel to use the utmost care in the submission of documentary evidence so that all papers relevant to the case should be present in a manner which left no room for error.

Messrs H. F. O’Leary, K.C. (Wellington), and T. P, Cleary (Wellington) appeared for the plaintiffs, Olive Judge and Ivy Cookson, two of the testatrix’s nieces. The trustees of the estate, who upheld the will, were the Guardian Trust and Executors’ Company of New Zealand, Ltd., for whom Mr E E Barrowclough (Auckland) and Dr. A. L. Haslam (Christchurch) appeared. Evidence for the plaintiff was continued, the first witness being Dr. John Russell, deputy-director-general of mental hospitals. Witness said he bad often been referred to by a judge or the Supreme Court regarding the ability of aged and infirm persons to make wills. In February, 1936, he perused papers concerning Miss Elizabeth Smith. From a medical point of view he considered she did not have a disposing mind in December, 1933, and he was of the opinion that she could not have had a disposing mind six months later. The practical test was whether she knew the nature and amount of her property, and there was evidence in the affidavits submitted at the earlier proceedings to show that she was unable to recall details of recent transactions.. The conditions described in the affidavits were the outstanding symptoms of senile dementia. Dissolution of the brain gradually progressed in such cases and there was never any regeneration of the diseased tissues. It was quite evident that Miss Smith was unfit to make a will in December, 1933, and it followed that she could not have testamentary capacity in June, 1934. Opinion Strengthened Continuing, witness said the evidence he had heard during the present case had strengthened his opinion. When a person lost the sense of personal cleanliness and picked up rubbish and worthless trifles, this generally occurred at the stage at which medical authorities were consulted, indicating an advanced stage of dementia. Commenting on the interview at which the will was signed, witness said it was his invariable practice in such circumstances to insist on seeing the patient alone. The family or business adviser was the last person who should have been present at such an interview. „ , . Cross-examined by Mr Barrowclough, witness said that there was no evidence of delusions in Miss Smith. - Mr Barrowclough: Is it not a fact that delusions are a concomitant of advanced senile dementia?

Witness: No. In the stage that Miss Smith was in? —No. Would it not be some evidence against the supposition that Miss Smith was not capable of making a will that she had no delusions? —No, not at all. “Not a Typical Miser” Referring to the evidence of Miss Smith’s conduct in butchers’ and bakers’ shops, Mr Barrowclough asked if it was not the truth that she was a confirmed miser. Witness: Yes, in a childish way. His Honour: It is evidence of childishness ratner than of miserliness? — Yes. She was miserly, but one would not refer to her as a typical miser. Mr Barrowclough: But she showed a degree of parsimony right back to the war days?— Yes. Witness admitted that if a person was in an advanced state of senile dementia it would be fairly apparent to the layman. He did not say Miss Smith was irrational, but her memory was failing and she was childish. He admitted that she had remembered in her will, either by providing for them or by expressly omitting them, all the members of her family with whom she had been in contact during the latter part of her life. Mr Barrowclough: When you say the testatrix should have been examined privately as to her testamentary capacity, are you prepared to say that Dr. Baxter neglected his duty? Witness: No. There are other circumstances which have come into the case since that time. Private Examination Essential Could you visualise a situation in which you might yourself feel assured that a conversation with a prospective testator, in the presence of others, might satisfy you that there was no need for a private interview?— No. It is my invariable practice to insist on seeing the patient alone. But, if you were examining my testamentary capacity, you would not insist on seeing me alone?— Yes. Re-examined by Mr O’Leary, witness said the history of a patient s case was very important. He understood that Dr. Baxter, who saw the patient, did not have before him the contents of the affidavits. Witness, on the other hand, had not seen the patient, but had had the benefit of a close perusal of the affidavits, and he did not consider that Dr. Baxter was in a very much better position than he was to pronounce upon the testamentary capacity of Miss Smith. Dr. Alexander Cameron McKillop, superintendent of the Sunnyside Mental Hospital, said that Cookson, the husband of one of the plaintiffs, had forwarded to him copies of the affidavits in the protection order proceedings. From an examination of the affidavits witness had come to the conclusion that Miss Smith was suffering from senile dementia in an advanced stage. Witness knew that there was a possibility of her will being attacked. From the affidavits he considered she was not fit to make a will. Witness corroborated the evidence of Dr. Russell regarding testamentary capacity, and the tests that he would expect to apply to determine a person’s capacity. Cross-examined by Mr Barrowclough, witness said the conversation of Miss Smith with Biggins on the subject of shares did not appear to him as evidence of shrewd business appreciation. Miss Smith was supposed to be depressed at that time, and a shy and retiring woman. That she should converse so freely on such a subject indicated something unusual in a woman of her type. He concluded that it was the talking of a senile person. “Should Have Been Certified” In answer to further questions, witness said be considered Miss Smith was a person who should have been certified insane, and committed to a mental institution. This condition existed at the time the protection order was granted. Her mental state, as shown in the affidavits, was such as