Judgment Reserved In Case Over Disputed Will

Press, Volume XCIII, Issue 27987, 6 June 1956, Page 15

Judgment Reserved In Case Over Disputed Will

SUPREME COURT

Decision was reserved by Mr Justice Adams in the Supreme Court yesterday in the case in which he was asked to determine the validity of the will of Mrs Annie Deans, formerly of Parnassus.

Gerald Noel Lake Holmes, a solicitor, as executor, asked the Court to grant probate of the will made by Mrs Deans on October 24, 1954,. \yhile she was a patient in the Christchurch Public Hospital and a few days before she underwent an operation for the removal of a brain tumour. She died on November 11, 1954. By’ that will Mrs Deans left her estate, valued at £6286, a farm being the main asset, in trust for her husband, Charles George Deans, for life and after his death to her daughter, Mrs Joyce Lena Weir.

Mr E. S. Bowie appeared for the executor, and Me R. Twyneham for Mrs Weir, who opposed the application for probate on the ground that her mother did not have testamentary capacity when she made the will. Most of the evidence was heard on Thursday when the case* was adjourned. When the hearing was resumed yesterday, evidence was given by Mrs Weir.

Mr Bowie was granted permission to call Dr. F. O. Bennett who attended Mrs Deans while she was in the Christchurch Public Hospital. Submissions by Counsel

Mr Twyneham said he unequivocally and publicly acquitted Mr Connal. the solicitor who drew up the will and took it to the for signing, of any suggestion of impropriety. He did what he was asked to do and believing that Mrs Deans was making a will she wanted to make. “I also say that had Mr Connal been seized of all the facts the will would never have been made without further investigation. Had he been told that Mrs Deans was suffering from a cerebral tumour and had he been told that Dr. Brass had said the day previously that Mrs Deans was not capable of making a will, it was not hard to imagine what steps Mr Connal would have taken before drawing up the will for Mrs Deans to sign,” said Mr Twyneham. Medical evidence in a case such as this was more important than that of laymen. The tumour did affect Mrs Deans’ mentality, so the effects were better known to medical men than to laymen. The onset of the disease was not as sudden as the husband had suggested, said Mr Twyneham. There could be no suggestion that Mrs Deans was fit to make a will on October 22, 1954. Dr. Squires was emphatic on that point. There were two questions before the Court: had Mrs Deans testamentary capacity when she made the will? and, was it in fact her will at all? Her sister and her daughter had given evidence that there was no variation in her condition when they saw her on the Saturday, October 23, and the Monday, October 25. Dr. Brass was of the opinion that Mrs Deans could not have made a valid will during the time she was in the Christchurch Public Hospital before going to Dunedin for the operation. Mr Twyneham said he did not sug-«

gest it was totally improper for Mrs Deans to give instructions .for her willthrough her husband, but the Court had to consider whether she did give those instructions. The only evidence on what she wanted in her will was that of the husband. , His evidence was that they had often discussed it but he could not give times or places when the,discussions took place. There was no evidence on whether Mrs Deans had altered her mind in any way between the time of these discussions and the time she made hei will.

Mr Twyneham Submitted that Mrs Deans did not have testamentary capacity and it was not the will she intended to make.

Case for Executor

The case for the executor was that Mrs Deans had previously discussed the will and knew what she wanted to happen to her property after her death, said Mr Bowie. He submitted that Mrs Deans had sufficient memory and intellect to dispose of her assets at the time she signed the will. There was such a scheme of disposal in her mind for she and her husband had discussed it a lot of times over a long period. The case would turn on the evidence of the independent witnesses. For Mr Twyneham’s client those were Dr. Squires and Dr. Brass. The'' former examined Mrs Deans on October 22, 1954, and he did not see her after she went to hospital, but he did say that cerebral states might fluctuate—comatose at one time and comparatively well the next. Dr. Brass had not a great, deal of experience at October, 1954, and her evidence could not stand against that of Dr. Bennett. -Provided that Mrs Deans understood that her daughter Was to have the property after the life interest of the husband, that would be sufficient understanding to make the will .valid. Against the evidence for Mrs Weir there was the evidence of the husband, who was a reliable witness. If the Court (lid not accept his evidence the Court must not only conclude that the husband was lying but also that he conceived a plan to benefit himself and carried it out with such circumstantial detail that he was able to pull the wool over the eyes of a very experienced solicitor and a trained nurse.

Mr Bowie submitted that the husband’s evidence was corroborated in so many ways that the Court, should accept it. The appointment of executor was not to the husband himself but to a solicitor. The independent evidence for the executor was that of Mr Connal,-Mrs McKenzie, and Dr. Bennett. The will was a bedside one and Mr Connal would know what was expected of him. His evidence was that Mrs Deans knew what she was doing and that after the will was read to her she read it herself, 'McKenzie, a trained nurse, said that Mrs Deans appeared to understand the will and had no difficulty in making her signature. Dr. Bennett considered that if Mrs Deans was conversant with the contents of the will then she might* have testamentary capacity. His opinion was that the medical evidence in this case would not be of much help to the Court and that the lay evidence would be better. Mr Bowie said that provided that Mrs Deans knew and understood she was engaged in the business of making a will, she had testamentary capacity. He submitted that it was a proper will and that Mrs Deans was sufficiently clear in mind and memory to know how she was disposing of her assets. It had not been shown that she lacked testamentary capacity and so the Court should not interfere with the will. On the facts and the law the will should be admitted to probate. His Honour said he, would take time to consider his judgment. DECREE NISI GRANTED John Andrew Mclvor (Mr B. J. Drake) petitioned in the Supreme Court yesterday before Mr Justice Adams for divorce from Elizabeth Preciosa Mclvor (Mr W. G. P. Cuningham) on the ground of separation. He was granted a decree nisi. The petition was undefended.