FIFTH DAY

Evening Post, Volume CXII, Issue 90, 13 October 1931, Page 10

FIFTH DAY

WILL CASE APPEAL

SIR G. HUNTER'S ESTATE

QUESTIONS TO COUNSEL

Frequent questions and observations by the Bench punctuated the argument addressed to tho Court of Appeal yesterday afternoon and to-day by Mr. H. H. Cornish, as one of the counsel for tho appellants, Cyril Paul Hunter and Thomas Percy Hunter, nephews of the late Sir George Hunter, M.P., in the Hunter will case appeal. Mr. Cornish commonced his argument on Friday afternoon. He addressed' tho Court" all day yesterday, and to-day, in answer to tho Chief Justice (bir Michael Myers), counsel said the remainder of his argument would probably take tho afternoon. The hearing of the appeal was started on Wednesday afternoon. Mr. A. Gray, K.C., with Mr. H. H. Cornish and Mr. L. K. Wilson, is appearing for the appellants, and Mr. G G. Watson, with Mr. H. J. V. James, for the respondent, Lady , Edith May Hunter. SUBMISSIONS TO COURT. Mr. Cornish submitted that the Court below was wrong in the following respects: — (1) In rejecting lay evidence of fact and preferring medical evidence of opinion led by the defendant, which error involved: (a) Not appreciating how cogent was the proof of mentality furnished by such lay evidence, uncontradicted by other lay evidence, if analytically examined; (b) attaching to such medical evidence an importance it did not possess because: (1) Medical evidence is no.t intrinsic or a priori superiority over lay evidence, except as to clinical matters, (2) at the worst, the medical evidence from the plaintiffs' point of view was indecisive and created no balance of medical opinion in favour of the defendant; (3) one half of such evidence was furnished by medical men who never saw the testator professionally at any time, and the other half by men, though they attended the testator professionally, did so on few occasions and for only brief intervals, who never directed their minds to the question of < testamentary capacity, and whose evidence, consisting entirely of retrospective opinion, was based on no decision or examination that could justify it; and one of those witnesses was "coloured" in his view by another; (4) such evidence was vitiated by internal contradictions and was based to a considerceeded on tho assumption that the ablo extent on trivial circumstances, and also on the assumption of facts which did not exist; (5) such evidence of the defendant's medical men proceeded on the assumption that the stroke was a severe one, whereas the clinical picture was of a slight stroke rapidly clearing up, this erroneous assumption being essential to the theory, contradicted by the lay evidence, that thero was a serious impairment of mentality. (2) Mr. Justice Heed in effect set up a standard of testamentary capacity more exacting than' the law required. (3) In drawing various wrong references of fact. Counsel elaborated on his submissions, and referred the Court to passages of tho printed evidence, which, he contended, contained incidents showing that Sir George had memory of recent events, interest in politics and racing, business ability and understanding, capacity to originate conversation and ideas generally, and the possession of an independent mind and will. "WAS A GAP LIKELY? In view of the number of Incidents where people had seen Sir George Hunter and discussed questions and transactions with him before and after 16th November, Mr. Cornish'asked whether a man who had done these things could havo lacked capacity. All the incidents were of the same character. Was it consistent with probability that on one day over all that period Sir George should lack the capacity he had shown himself to have had on all the other days? Was it likely that there should be a gap on that day? It was necessary for the defendants to show that there was a gap, and the plaintiffs said that up' to and after this particular date Sir George was mentally alert. The other side produced no evidence against that contention. Mr. Justice Smith said that Dr. Steele stated that he was not asked for an opinion on the particular day. Dr. Steelo said that if the will were materially or grossly different from the previous one Sir George could not have understood it. Mr. Cornish contended that no great mentality was required to' understand the altered provisions. Mr. Cornish said he would not pursue the technical evidence because he submitted the Court found it not helpful. Counsel passed on to elaborate his next submission that, Mr. Justice Keed required too high a standard of testamentary capacity. Mr. Cornish said his Honour had before him clear evidence of memory and understanding, which his Honour rejected as being insufficient. "One cannot evade that," eaid Mr. Cornish. "His Honour had before him this evidence of what the man could do, including complicated transactions, drafting telegrams, giving directions as to his farm, sitting in tho Legislature, and he said: 'This is not enough.' ... I suggest that the evidence shows Sir George possessed all the essential attributes of mind." "FIGHTING A SHADOW." "I feel we are fighting a shadow in this case," said Mr. Cornish. The Chief Justice: "That is not very respectful to the judgment of the Court below." "Well, 1 have no intention of being disrespectful," said Mr. Cornish. The Chief Justice: "Mr. Cornish, rhetoric gets counsel nowhere nowadays in matters of law." Mr. Cornish said ho was not aware he was being rhetorical. He wished to show that no proof had been given of the want of any definite' quality of mind. All the evidence was the other way, he submitted. Mr. Justice Adams: "If you are fighting a shadow, why fight so. energetically? . . ." (Laughter.) Mr. Cornish: "I think wrestling Jacob would be a better simile, your Honour, for my position." The Chief Justice: "Isn't this the whole case after all, Mr. Cornish? The Court has to satisfy itself upon a view of the whole evidence, trying as best it can to look at the evidenco in its true perspective. That is the whole thing. The Court's conscience has to be satisfied. . . ." Mr. Cornish said that to adopt the observation of Mr. Justice Smith the appellants had to satisfy the Court on the balance of probability that the testator had capacity on 16th November. The Chief Justice: "And that has to be determined on the balance of the evidence." (Proceeding.)