ABOUT A WILL

Dominion, Volume 4, Issue 1075, 14 March 1911, Page 3

ABOUT A WILL

QUESTION OF TESTAMENTARY CAPACITY. INTERESTING CHRISTCHURCH CASE. (lif Telc;raph-Pi-cS3 Association.! Christchurch, March 13. Judgment by Mr. .Justice Chapman in an interesting will ease was read by the registrar to-day. The ca>c was that of Hannah Copeman v. Samuel Albert Staples and Sarah Jessie Smith, an action to set aside probate uf a will on the ground of want of testamentary capacity. It was assumed by plaintiff's counsel that it was incumbent on him to begin and to prove the testators want of capacity. This, however, says the judgment, is "not the case. The onus of proving a will remains upon the executor propounding it, though if no evidence is given the common presumption of sanity may be relied on. The question raised was as to the testamentary capacity of Richard Smith, a retired farmer, eighty years of age, who died on August 14, 1010, having made the will in question on the same day. By his will Smitl.( left his property to his wife, a comparatively young woman, whom he had recently married. The will was opposed by liis only sister, a married woman 72 years of age, on the ground of defective execution, and wa»t of testamentary capacity. Both Mrs. Copeman and her husband were, to Smith's knowledge, old age pensioners. , "The estate," proceeds the judgment, "is small, and ended when the sum of ■£500 is paid to the widow pursuant, to the provision of the Administration Act. The balance divisible in the cafe of intestacy would leave but a small sum to represent one-third payable lo the sister, further, the sister has very little, if any, real interest in contesting the will, as anything'she may get will affect her pension." His Honour refers to this fact, as it seems to have be2ii appreciated by the testator. He bad on the. morning «f the day of his death, when he was undoubtedly competent to make a will, told Dr. Derenzi, who was attending him, that he did not want the (jorcniinenr to have any of his money. The doctor was under the impression that testator thought the Government would get his money if he died intestate. A few months also before his death, a Mr. Shaw heard him say "that ho would not leave hsi sister anything, especially since she got the old a l -:c! pjiision, as whatever lie left licit she would be wor?e off." On the mora. ing of the day of.his death he was clearly of te-tanientary capacity and ho said to Dr. Derenzi, who was attending him: "I have very little i-> leave. Jt won't take me long. The little woman here, 1 wane to see her all right." Ilis Honour.* had no doubt (hat Dr. Dcrenzi correctly interpreted this as an expression of testator's desire to make a will in his wife's favour, and his Honour saw no reason to think that he had then formed any intention of benefiting anyone else. He, however, gave no instructions on the snbjeot, and it could not be said that he had then necessarily matured his final determination. At half-past ten that evening testator was much weaker. Symptoms of uremic poisoning had set in. He could not speak, but knew the doctor, and made sounds as if attempting to speak. There was discutsion about a will initiated by Jlrs. fit::;>lcs, wife of defendant. • Dr. Dcronzi injected strychnine, and under this stimulus testator's condition improved. Dr. Derenzi asked testator if he wished him to make, testator's will. Testator nodded his ass-ent. The doctor then asked whetheir he wished to leave everything to his wife. Testator.again nodded his assent. The doctor then drew up a will whereby testator left all his .property to his wife, and appointed. Samuel Albert Staples executor. • ■ . . . The first question was.whether testator was conscious when the paper was signed of the fact that he was e.-cciitinft his last will in the presence of two witnesses. After iioing into the evidence at leneHi and quoting various authorities, his Honour holds that he cannot admit the instrument to probate. As to the question of testamentary capacity, his Honour does, not doubt the doctor's evidence that Smith had sufficient consciousness to understand what was said when the ■■ doctor told him that this was a will leaving everything to his wife. His Honour, however, is not fully satisfied that it represented an actual cieHso of testamentary authority. It was by no means certain that Smith was at that moment capablo of graspinpf the fact that he was excluding his sister from all participation in his estate. ThoiHi his Honour regrets not Ijpinjr able to five effect to .in instrument which was not only a proper will for testator to have made, but most proper for him to make. "He (his Honcnr) is obliged in the circumstances to say that as he was left in considerable doubt, this doubt ought to be resolved in the way in which it had always heretofore been resolved, namely, by the. answer deficit probatio." His Honour considers that air parties acted in good faith, that witnesses endeavoured to represent the facts correctly as they occurred, and that it was a proper course for Staules to take to propound the will. In these circumstances he would order the costs of both parties, as between solicitor and client, Jo be paid out of the estate of the testator.