SUPREME COURT Plaintiff’s Evidence In Dispute Over Will

Press, Volume CII, Issue 30259, 11 October 1963, Page 9

SUPREME COURT Plaintiff’s Evidence In Dispute Over Will

Myrtle Hettie Gibson (also known as Williams) had made a will in March, 1961, when she did not have testamentary capacity, Mr P. T. Mahon submitted in the Supreme Court yesterday. He said this will was made after her previous legal advisers ha<j refused to permit her to execute a wilt Instead, they had advised her to take out a protection order. Mr Mahon was opening the case for the plaintiff, Gordon Stewart Gibson, a civil servant, and only child of the testatrix, in a dispute over the validity or otherwise of Mrs Gibson’s last will.

The plaintiff seeks the Court’s pronouncement against the validity of the will, claiming that when it was executed Mrs Gibson was not of sound mind or understanding. Derek Harold Kemahan, a public accountant, and Robert Bruce Shand, a solicitor, trustees of Mrs Gibson’s estate under her last will, seek probate of the will. They are represented by Mr J. T. Eichelbaum. In her will Mrs Gibson left a life interest in her estate, which is of an estimated value of £7OOO, to her son. After his death the estate was to be shared between her son’s children and Kernahan's children. Mr Justice Wilson adjourned the case to today after three witnesses for the plaintiff had given evidence. The case had proceeded on the counter-claim of Kemahan and Shand, as defendants, seeking probate of the will. Mr J. E. Millar is appearing with Mr Mahon for the plaintiff. Continuing the defence evidence David Henry Hicks, a solicitor, said Mrs Gibson, accompanied by Kemahan, saw him in Shand’s office on December 19, 1960, to give instructions for a new will. “Mrs Gibson was very coherent regarding the extent of her assets,” said ■ Hicks. "She said she particularly wished no relative apart from her son to benefit. I understand that was her reason for making a fresh will. I think she said her sister benefited under her previous will.” Her explanation for wanting to benefit Kernahan’s children was that Kemahan was one person who had shown an interest in her affairs. “But it was agreed at that interview that the possibility of Kemahan’s children receiving the estate was rather remote,” Hicks said.

Hicks said he had nothing further to do with the preparation of the will after Mrs Gibson had seen Shand on January 16, 1961. In cross-examination by Mr Mahon Hicks said it was true that Kemahan had done most of the talking at the interview, because he had given Mrs Gibson’s background. It was not true that Kemahan had told him the extent of Mrs Gibson’s assets. The

answers came from Mrs Gibson.

Mr Mahon: On what you learned at that interview you were satisfied there was sufficient ’’reLationehip” between Mrs Gibson and Kemahan to justify his children receiving something?

Witness: It was not a question of justification but it was a rational reason why She wished to benefit them. He agreed it was a reason he accepted at the time. Mr Mahon: You now know the statement she made was not correct? Witness: I now know she had known Kemahan only some three or four years at the outside. He was asked if, had he known the true extent of their “relationship,” he would have accepted at face value the reasons Mrs Gibson gave for including Kernahan’s family in her will. “I possibly might have made further inquiries,” he said. Plaintiff’s Case Mr Mahon, ouitHiniing the plaintiff’s case, said the ■granting of probate of Mrs Gibson’s last will was opposed on the ground of her lack of testamentary capacity, and on the principle of strict proofs which was applicable where a beneficiary propounded a will in which his family had a substantial interest. Mr Mahon submitted that Mrs Gibson did not have the benefit of independent legal advice. The will should not have been made without such advice. It was only after four or five consultations with Kemahan that she announced her desire to leave her whole estate to him. Mr Mahon said independent evidence would confirm the seriousness of Mrs Gibson’s conduct and behaviour in her home in Waiimairi road, and of further eccentricities when she moved to Pages road. “Mrs Gibson has been represented by witnesses for the trustees as being a normal, reasonably well - balanced lady. My unfortunate duty is to show thait this was not so. There were occasions

when she was undoubtedly unbalanced, at times to the point of derangement,” Mr Mahon said. Thomas William Round, formerly a constable stationed at Upper Riiocarton, said he received numerous camplaints from neighbours in 1960 of noise Mrs Gibson was causing in her home. On several visits he found she had damaged the house and furniture.

Agnes McLellan Mason, a married woman, said Mrs Gibson, whom she had met some time before Mrs Gibson died, seemed to have a hatred of everybody she had known.

Cross-examined, she said she had been concerned both flor Mrs Gibson’s physical and mental condition. “She had a set on both her past and present financial advisers.”

Ralph Patrick Thompson, a solicitor, who had drawn up a previous will for Mrs Gibson in 1959, read a letter he sent to Mrs Gibson In 1960 in which he suggested that because of her difficulty in managing her affairs she should seek a Court order appointing the Public Trustee as administrator of her affairs. Decree Nisi Granted

Mr Justice Wilson in the Supreme Court yesterday granted Robert Harold Moore (Mr B. J. Drake) a decree nisi in his petition for divorce against Doreen Agnes Moore (Mr G. T. Mahon) on the ground of separation.