HUNTER WILL CASE

Evening Post, Volume CXI, Issue 92, 20 April 1931, Page 8

HUNTER WILL CASE

THE OCTOBER WILL.

DECISION FOR WIDOW

*ONLY ONE QUESTION;'

TESTATOR'S CAPACITY

The decision in the celebrated Hunter will case was announced to-day, ■when Mr. Justice Keed delivered his reserved judgment, which comprised 65 pages, and which took an hour and a quarter to read. The judgment was in favour of the principal defendant, Lady Edith May Hunter, widow of the late Sir George Hunter. It pronounced against the will of November, 1929, ■with its codicils, which were propounded by the plaintiffs, Cyril Paul Hunter and Thomas Percy Hunter, joint trustees with Lady Hunter, and also against the will of October, 1929, and proaiounced in solemn form of law for the will of August, 1924. Both tho October and November wills were made after Sir George Hunter's illness commenced as a result of a stroke. Lady. Hunter "opposed probate of the will propounded on the grounds of want of due execution and want of testamentary capacity. The other defendant, Elizabeth. Hunter, daughter of Sir George and Lady Hunter, and aged seven, admitted the will and codicils propounded, her counsel being of the opinion that the will was more to her advantage than that'of 1924. • The sole question in issue had resolved itself into whether or not, after the first stroke, the testator over had testamentary capacity, said his Honour. That was made the issue by the admission, common to all parties, that although the testator's physical condition improved there was never any change in. Ms mental capacity from the time he recovered consciousness after the first stroke to the end.

Referring to the will of October, 1929, his Honour said it was drawn by Mr. Alexander Dunn, sole proprietor of the firm of Bethune and Hunter (to whom a bequest of £300 a year was made), and it was material to observe that he took a, direct benefit under the 'will. Considering the testator's state of health it could only be 'described as most unfortunate that Mr. Dunn did not confer with Lady Hunter about the advisability of making a will nor discuss the proposed provisions with her. When she did know that it was proposed that a will should be made she did her best to stop it, solely owing to the weak state of health the ■testator was in; she did not appear to ihave suspected a want of testamentary capacity. . . . There could be no ques: ■lion that the testator was very seriously ill, and it should have been obvious to Mr. Dunn that a man who ihad recently had a severe stroke and fwho was paralysed all down one side, jwith an • impeded speech, was likely jto have, at the least, a clouded intellect, and that it was necessary, therefore, to take the greatest care to ascertain his • intellectual capacity to make a will. What he did do, however, was to . take purely superficial precautions iby obtaining the signatures of two medical men as witnesses to the will without any attempt to see that the testator's mental capacity was tested in any way. In view of the testator's state of health, Mr. Dunn ought to have obtained competent medical opinion ■ Tjefore he attempted to take any instructions for a will at all, and it /would not ha,ve been an excess of precaution if he had requested the .solicitor who had drawn his last will to at|tend with him,and discuss the position with the testator. ■

DOCTORS' EVIDENCE.

After reviewing Mr. Dunn's evidence, •his Honour said that three doctors were jnore or less concerned with the execution of the October will. Dr. Giesen's .opinion generally was that at no time <lid the testator possess testamentary jsapaeity. Tor some reason that did pot appear, all three doctors seemed to iave assumed that the will which the [testator ,was to sign was either prepared before the stroke or for which full instructions had been given beipre that date, and that their duty was confined to ascertaining and certifying that the testator understood that ho was signing ,his will. Drs. Steele and Macdonald signed the will as attesting witnesses after the attestation clause was read, over to them, and that clause contains a certificate, in these iwords: "We certify that the testator ■was in a fit state of mind to make a ;will." It was to be regretted that the condition of mind required in a testator, who through bodily weakness signs by mark, was not brought prominently before the attesting witnesses by the insertion in the attestation clause of the requirement of Rule 522 of the Code, that is to say: "That the testator was in full possession of his mental faculties."

THE FINAL WILL,

His Honour, referring to Dr. Steele's ipvitlence, said it was quite impossible to reconcile- it with the statement made by him at the conference of doctors [before the proceedings commenced, and ircmarked .that the weight to be attached to the' explanations of tho witness was considerably affected by his position in the case. It was obvious to the Court that he was taking an active part in assisting the •plaintiffs' case. . . . Inhere was a direct and irreconcilable conflict of testimony between Mr. Dunn 'arid Lady Hunter with regard to the circumstances surrounding tho making of the next will; what emerged with absolute certainty was that round the ■weak and ailing testator raged a strenuous and continuous conflict between Mr. Dunn and Lady Hunter as to what the terms should be. It was also clear that the will that eventually emerged did not represent tho free and unfettered will of the testator but was made under pressure. The will was followed by two codicils in the following April. Mr. Dunn admitted that they were prepared and executed without tho knowledge of Lady Hunter, and that she knew nothing about them till after the testator's death. To such an extent was tho concealment carried that questionable tactics were employed to secure it.

LAW ON THE QUESTION.

His Honour dealt in detail with the evidence of the medical men who came into contact with the testator, nurses, masseur, and masseuses in attendance upon him, Lady Hunter, solicitors who saw him during his illness, non-profes-sional visitors, and expert medical men. Before d2aling with the evidence under the last heading, Ms Honour said it was convenient to consider the law to be applied in a case where the question of testamentary capacity was involved. It might be.premised that in the caso of a will, which, on the faco of it, was properly executed, there was a legal presumption that the testator was possessed of testamentary capacity. It was in pursuance of that presumption that .the probate of a will was granted in common form. "But a will cannot be admitted to probate in a contested case Sinless the Court, on a review of the Whole evidence, is satisfied that the testator was of sound mind, memory, and understanding at the time of its execution." Admittedly the seizure from which the testator suffered was cerebral. That was a factor for in that case "the testator would be more unlikely to be capable of understanding , business "than if, for instance, it had ' beea-iEft heart affection. An illness of

such a character as to be likely to cloud the intellect imposed the greatest care on the Court to see than when a testator was called upon to exercise his will his mind was clear and he perfectly understood what he was doing. The medical evidence, his Honour thought, showed that whether _ tho stroke procoeded from a thrombosis or a hemorrhage tho usual result was actual destruction of brain matter.

Iv conclusion, his Honour said he had considered it necessary to analyse the evidence at considerable length, but he thought the importance of the case warranted it. It was contended that tho wills were simple in thennature and required but little mental capacity to understand and appreciate, but he did not agree. Tho October will required a full and careful consideration by a man with his mental powers unimpaired. It was almost . open to the suggestion that the will itself contained internal evidence of want of mental capacity. In tho November will there was a complete volte o face, and it was obviously the result of sustained pressure on a weak and'fccble

His Honour quoted a principle laid down by the Privy Council, that the law was that the prdpounders of a will must satisfy the conscience of the Court that the instrument so propounded was "the last will of a free and capable testator, and he added that the conscience of tho Court in the present case had not, been so satisfied. Commenting that he thought it was the duty of the plaintiffs as executors to propound the will, his Honour ordered the costs of all parties to be taxed as between solicitor and client and to be paid out of the residuary estate.

Mr. A. Gray, K.C., with him Mr. W. Matthews and Mr. L. -K. Wilson, appeared for the plaintiffs, Mr. G. G. AVatson, with him Mr. 11. J. "V". James, for Lady Hunter, and Mr. W. Perry for Elizabeth Hunter.