LEGAL ARGUMENT OVER

Evening Post, Volume CXII, Issue 91, 14 October 1931, Page 11

LEGAL ARGUMENT OVER

WIDOW'S COUNSEL BRIEF

DECISION RESERVED

J.o^al argument in the appeal from the decision or' Mr. Justice Real in the Hunter will case was concluded in the Court of Appeal yesterday afternoon, after a hearing of four and a half days. The Court desired to hear counsel for the respondent, Lady Hunter, only on one point—as to the opinion hold in respect of the effect of the three codicils to the disputed will of November, 1020. IX-r-ision was reserved, but the Chief Just ire (Sir Michael Myers) intimated that if, upon consideration, the Court felt any doubt in the matter, counsel tor the respondent would be heard further at a later dale. The appellants were Cyril Paul Hunter and Thomas Percy Hunter (nephews of the late Sir George Hunter, M.P.), who in the Supreme Court action before Mr. Justice Reed asked for probate in solemn form of a will purported to have been executed by Sir George Hunter on I6th November, 1920, together with two codicils, dated 7th April, 1930, and a further codicil, dated 27th June, 1930. His Honour, however, gave judgment in favour of Lady Hunter, the testators widow, pronouncing for a will and codicil of 21st August, 1924. At the hearing of the appeal, Mr. Justice Adams and Mr. Justice Smith sat with the Chief Justice. Mr A Gray, K.C., with Mr. H. H. Cornish and Mr. L. K. Wilson, appeared for the two appellants, and Mr. G. U. Watson, with Mr. 11. J. V. James, for Lady Huuter. In the course of thd argument lie addressed to the Court yesterday afternoon, Mr. Cornish said that the condition of Sir George Hunter from October to November, 1920, might be described thus: If a matter arose in which he was interested he would eugage in conversation freely and rationally; if it was of no interest to him, nothing in which he bad ever had any interest, he might well have appeared to strangers as apathetic, and perhaps would not even talk.

"MOST EXTRAORDINARY THING."

After Mr. Cornish had mane two submissions in regard to the three codicils to .the November will, the Chief Justice said it appeared to him as a eurious_ thing that the June codicil did not state it was a third codicil. The two codicils of April expressly confirmed the will. The first codicil said it was a codicil, and the second said it was the second codicil. Ihe June codicil said it was a codicil, and there was no reference whatever to, the two previous codicils. "It is another most ■ extraordinary thing in this most extraordinary case," commented his Honour. , Mr. Cornish maintained that there was uncontradicted evidence that after June, Sir George had recovered full possession of his faculties. The Chief Justice: "[ confess I cannot understand this codicil. You understand —I don't mean the English of it. Had Mr. Dunn forgotten the other two codicils, or, if he remembered them, why didn't he put them in? I cannot understand any solicitor preparing a document like that." Mr. Cornish said that if it was the solicitor's desire to protect his client from the tanfrmns of an excited wife, he thought no exception could bo taken to what Mr. Dunn had done. The Chief Justice: "A solicitor has duties higher than that." _ Mr. Cornish said he submitted with the greatest respect that a solicitor's duty was to his client, and he contended that Mr. Dunn had discharged his duty scrupulously and with zeal. What obligation did Mr. Dunn owe to Lady Hunter? The Chief Justice: "You can erase Lady Hunter altogether from the matter. She is not in my mind in connection with this at all." His- Honour said that iv his view the fact that no mention was made in the June codicil of the two previous codicils was wrong in principle. Shortly afterwards Mr. Cornish concluded his argument, which had occupied about two full days. Counsel, whoSe address had been interrupted by many questions from the Bench, said it had been a very difficult case, and he could only plead that he had honestly tried to give the Court every assistance. The Chief Justice: "Everything that can be said for the appellants has been said by Mr. Gray and yourself." Before sitting down, Mr. Cornisn said he submitted that the Court, having such abundant evidence before it of a generous will made by a generous and publicspirited man, would hesitate long before rejecting it simply because of the reason which, he contended, had given rise to the litigation, that Sir George Hunter thought lit in one of his last acts to discharge a long-standing debt of honour (£SOOO bequeathed in the second codicil to Cyril Paul Hunter). EFFECT OF THE CODICILS. After conferring with Mr. Justice Adams and Mr. Justice Smith/the Chief Justice informed Mr. Watson that the Court did not wish to hear him at that juncture on the case generally, but only on .one point which Mr. Justice Smith would indicate.

Mr. Justice Smith: "Without entering upon the whole of your argument, would you indicate the view -which you attach, with such references as necessary, in regard to the effect of the codicils of April and the codicil of June?" Mr. Watson submitted that the appellants must prove to. the satisfaction of the conscience of the Court that when the codicils were signed Sir George Hunter was of sound memory and understanding, and it was contended there was no evidence whatever other than that of Mr. Dunn that was directed to the dates in question. So far as the April codicils were concerned, apart from the medical evidence, the only lay evidence as to Sir George's condition on 7th April was the evidence of Mr. Dunn and of his typiste who attested the will. The typiste's evidence, Mr. .Watson characterised as "simply grotesque." Dealing with Mr. Dunn's evidence, counsel said he had two observations to make. First there waa the finding of the trial Judge as to the value to be attached to Mr. Dunn's evidence, and in the.present case it was claimed that a very great deal depended upon the demeanour and the conduct of the witness who gave evidence in the course of a protracted trial. His Honour the trial Judge had characterised Mr. Dunn as an unsatisfactory witness. The Chief Justice: "Not a good witness." • Mr. Watson: "Not a good witness and one who lacks precision."

Counsel submitted it was an extraordinary tiling Mr. Dunn was unable to produce any diary, not even a rough bill of costs—no document of any kind to justify his recollection of events; and 'there was one intrinsic occasion on which .Mr. Dunn had been proved to bo wrong' in his recollection. Replying to the Chief Justice, ..[r. Watson sa'id his view was that Mr. Dunn's evidence went to the foundation of the appellants' case; his evidence was essential to their case. THE MEDICAL EVIDENCE. Passing on to deal with the medical evidence, Mr. Watson said that there was a definite finding of fact in the lower Court that the apoplectic seizure Sir George suffered was severe. That was the only possible finding the Court could have come to in view of the fact that every doctor who saw Sir George personally said that the apoplexy was severe. Mr. Gray: "I don't agree witli that." Mr. Watson said that Dr. Steele in his statement, Dr. Giesen, and Dr. Duncan, of Rotorua, said that the apoplexy was severe, anil Dr. Mac Donald said it was moderately severe. And all the medical evidence on both sides was unanimous that in the case of severe apoplexy there was irreparable mental impairment. The condition did not fluctuate, so that it was submitted it. existed in the case of Sir George liuulcr at the lime of ihc purported execution uf tho April ami June codicils.

Mr. Justice Smith: "There is what the doctors '-.ill a certain degree of brightness at times/

Kcpb'i".- t" Ih" Chief Justice. ,1 little later, Mi. W'.'itson snid his view was. that

Ihe October will and the April codicils lo the November will wcro Air. Dunn's, iind the November will and Juno codicil Lady Hunter's.

Alter Mr. Gray hud replied, the Chief Justice said the Court did not desiVe to hear .Mr. Watson further or Mr. James at t.lio present stage. The Court bad heard all that there was to be said on behalf of the appellants, and if, after consideration, any doubt was felt in the matter, counsel "for tho respondent would be called upon.

The Court then adjourned