SON'S OPPOSITION

Evening Post, Volume CXII, Issue 138, 8 December 1931, Page 9

SON'S OPPOSITION

LAST CODICIL TO WILL

WEALTHY MAN'S CAPACITY

ESTATE OF £25,000

jtg .An action asking for probate in Lth' solemn form of the will and two cocliu*- cils of Joshua Viles, wealthy -Wairarapa . farmer, who' died last February}" was. ,ji.' commenced in th'o Supreme- Court- yes-' cd tcrday afternoon before"-Mr.' Justice liT. Ostler. The" plaintiffs are 'Samuel 3"j Cundy, stock-buyer," and Quchtin Donltl, aid, farmer, both of Featherston, as o k trustees of the testator's estate, and on the defendants. !ai;e two sons'-o£ the,or testator—Albert Victor Viles, farmer, <jh Qreytown, and Stanley Steadma'n'Viles,'' 11( j; clerk, of Napier. ' ■ Id, The late ' Mr.. Viles, who--lived :'at: c lv Featherston, left a valuable estate' of jic roughly £25,000. Probate is opposed eg.- by the two sons on the ground that i-y when, tlie second codicil is purported 30, to have been executed 'the 'testator in lacked testamentary capacity. : •_"■ on " 'The case was r.csumed this morhiiigj at' and the prospects are .that the-hearing ne possibly will last several .days. :- :' jc- Two counsel are appearing,. for the lr - plaintiffs, and three for the defendants. in HISTORY OF EVENTS. ;'.".'/ , An outline of the'history-of events ® and the evidence for theplaintiffswast> given by senior counsel ~£ov the plaintiffs. Counsel said that originally, when; r»s application was made for -probate of the will and-the two : codicils, caveats 7~ opposing the granting of probate-were Pl lodged on behalf of the sons Albert , and Stanley. . Now that the action had ,"" been commenced and pleadings had been been exchanged it appeared that only v " the last codicil' was disputed, by: the 1, two caveators. It was challenged on the ground of lack of testamentary °j capacity. The will propounded: was ?5 dated 18th March," 1924, and the-two. a l codicils were dated respectively 30th . ■ November, 1925, and 14th. February; I 1D29. The two sons, Albert and Stanc ley, benefited very materially by the ■? m first codicil, but lost the whole of thatt(: benefit by the second codicil; Evidence jj would, be called showing'that the two ~„ sons were) very active .in.procuring the jij making of the first codicil, which they ; "did not attack and by which they [ r received a substantial benefit. : ■ ag SHREWD BUSINESS MAN. as Apparently, said counsel, Albert and ef Stanley knew nothing ,of the second n" codicil until after their father's death. c" The testator left a comparatively large es family, of whom-Albert .'and' Stanley °" were the only members who cast any a* doubt as to their, fathers-capacity to l" n make a codicil in February,-i929-. Mr. ftt Viles died on 21st February, 1931;: two M years after "tho last codicil was made, < s- at the advanced age of 90 or .91 years.: He was ill • only a few days prior to his death, and the plaintiffs' evidence would show that he retained his physical strength, his mental vigour,, and- all his faculties right to the end of his life. Throughout his life the. testator was a very robust' man, strong-willed and determined, and by hard work and a good deal of shrewdness in business—■ bargaining in land and otherwise —man' aged to accumulate a substantial estate, valued roughly at £25,000. The estate }• represented cash in various banks, i- freehold and farm properties, a- number II of cottage w and shop properties,-and : also vacant sections. :■■ :.-; ■ .•'-■.- ---■ The most valuable farm property *> was known as Cheltenham farm, ; which ). was valued at between £9000- and [•- £10,000. It was in regard to this farm, t f said counsel, that the dispute arose; ,■' indeed,, it was: the cause of the action. y By .the joint: operation of the will and ,'■ the'first codie'ilrChe'ltenham- farm -was JpJteft to the sons Albert, and Stanley. ::: If j.-; :the codjcil stood alone Albert and-Stari-J Tey would take, in effect, almost" half ?;the total value of the estate: 'By" thfo second codicil, howeVer^ which was Wd-vv' i? attacked, a' somewhat' conipiicated and' 1 "unusual method-was'utilised-in dealing '- 'rCyith the Chelteniia'm'farm'fof -the purvr -pose of producing equality amongst the jj- various sons and- daughters.., By.: iljat :co'dicil the farm-was left to the trustees y iipon trust to offer to. another son, Wilr 'liam, the option, of. taking, a five years' ~~ lease at a rental of £450 a year-with £ a compulsory purchasing clause." Under 'that .clause; the son. William after five 2 years was to purchase the'property for „ £9000, and-wheii the clausevwasexer-" '•- £ cised the £9000 ' was -to : bV divided- ■ (.among the various sons and. daughters' • 0 of tho testator, so that instead 6f 7 Albert and Stanley getting the Chel- ■ Q tenham property' between thenij they ~' would have taken only £2500' each. / . In any event, the farm, was charged ' s * with an annuity of £150 to the widow. 3 BUSINESS A HOBBY. * Continuing, counsel said that the pvi- ; , dence for the plaintiffs showed that ' right down to the time of his death ; 3 the testator managed the business of ■ 1 all his properties himself. Virtually i 1 his business was his hobby,. and cvi-: j J dence would be given by. Mr. J. F. • \ Thompson, solicitor, of Greytown, who c had acted continuously,for the testator since 1914, that Mr. Viles always had ; very clear ideas as to what he wanted; I A week before: his death'the testator was arranging a new leaseof the CheltenI ham farm, and informed MrV'Thompson . that if he was unable to get the price - [ he was asking he would stock the proj perty himself and' start farming again. - SOLICITOR'S RECORDS. ] '. .. So far as th;e' testator's"-financial ; 1 capacity was concerned,'counsel skid -.'■: that Mr. Viles did his own banking'and : : ' arranged his own fixed deposits. VHe ' was regarded as a singularly" shrewd i old man. Evidence would should that .| ; the testator transacted a-great mass ' of business in connection with his pro- M pertfes and his' assets, and continued to do so in a self-reliant and capable inari- :j ncr until tho''last!week- of his Hfe. ' jSo '■■] far as his "health 'generally-was cdn-i ij cerned,-he was.a man who enjoyed good? -l health. Counsel added that there'would ,j also be evidence that-the testator had -] mentioned' to Mr.' Thompson that 'cert ' I tain members of his family undoubtedly '■'■ would make trouble after his death, and ./■ for that reia,son:. Mr.'Thbinpson' had _■:■ taken the trouble to keep more "detailed 'j records than usually would be kept 'of •-.» the instructions, etc., he received "from :.j Mr. Viles concerning, the'-'making: :6f '5 the will and cddieils. 'There -would also . . be evidence that inbii'tHs'after'"the-last " codicil was made Mr.- Viles told one'of , his family what he-had done-with the ,j Cheltenham property.v ~ i -.. .;. ~,: s In his evidence v james Fre3efi'ck: "S Thompson; solicitor, of.Greytown, stated \ emphatically, that he had no doubt at p all as to the testat'pr's capacity:"-'The B testator was quite att'exceptional man' .;•. J| for his years. ..S bored Mr; Viles remarking/to him .when;. E tho Hunter will. case, was before |lie. .^ L Court: "I mightn't be too good in the: legs, but they can't say that about jj me" (refdrring to tho: allegation :that ..'G Sir George HunteK lacked testumGntary "P capacity). ■••••■■■■■ -v.-. ;'■. :. • '-"■'■■. ■'•' j,j : Tho latter' part of' yesterday'after.- X noon and the whole., of this mpriiiiig Was occupied ili cross-examination of the witness'by-senioi- counsel :for. thQ rp f defendants. '■ ■• • • • ...".■.',.■.:';■ ;.r • 1 ; (Proceeding.) -:: '•'■■ '■'-'■■'■ • ■■■'," '

Queen Margaret.: College is-closing a little earlier than usual this/.y-ear . on account of a mild case- of- infection affecting one of the boarders.- Tho fact?

that the work of'■ the school year was already completed, and tho desire'-1 to take every precaution influenced the decision to close the school this-week rather than noxt. " ■