A WILL CASE

Evening Star, Issue 21881, 19 November 1934, Page 8

A WILL CASE

VALIDITY OF CODICILS CONTESTED ACTION IN SUPREME COURT The validity of two codicils to the will of au old lady was contested by a number of parties in .an action which came before His Honour Mr Justice Kennedy in the Supreme Court to-day. The case concerned the estate of the late Jessie Fish, spinster, of Dunedin, and the plaintiffs were Herbert Charles Stevens, farmer, of Christchurch, and Edward Ernest Collier, solicitor, of Dunedin, two of the executors of the estate, who asked the court for probate of the will to be made in solemn form.

Mr Warrington Taylor appeared for the plaintiffs; Mr A. N. Haggitt appeared for the defendants of the first part (seven in number), who were the coveators in the matter; Mr J. M. Paterson for a number of defendants of the second part; and Mr B. C. Hewat for Irene Stevens, one of the defendants of the second part. Mr Taylor, in opened the case for the plaintiffs, outlined the terms of the will, which waS made by the testatrix on December 17, 1929, the first codicil dated November 25, 1932, and the second codicil dated June 12, 1933. The first codicil gave Airs Irene Stevens a share in the residue of the trust funds of the estate, and the second codicil referred to the appointment of executors. Before the executors made an ordinary application for probate a coveat was lodged by seven of the beneficiaries under the will. It was the codicils to which objection was taken, there being no objection to the validity of the will.All the parties to the action were beneficiaries under the will and the codicils, and all the next-of-kin had been joined as parties. There were a large number of pecuniary legacies, and about forty were represented by one of the defendants of the second part. The parties were all represented except one, who bad been served but who had intimated she did not wish to appear in any way. The plaintiffs were two of the three executors. The remaining executor, Mr Frederick Fish, was one of the coveators. and did not wish to join in propounding the will and codicils, but intimated that he would join in the asking probate later once the validity of the codicils had been determined by the court. The defendants of the first part disputed the validity of the codicils, and the defendants of the second part, including Mrs Irene Stevens, a beneficiary under the first codicil, submitted to the judgment of the court. The validity of tbe will itself was admitted by all the parties. Mr Taylor stated tliat at the time of her death the testatrix was eighty-eight years of age. Various brothers and sisters died before her, and she was survived by twelve nephews and nieces, who were the next-of-kin, and a large number of grand-nephews and grandnieces, who were given legacies. During recent years the testatrix lived in her house in High street, and was able to be about till four or five years ago, but after an accident, in which she broke her leg, she was confined to the bouse. During the last few years she bad a nurse or a companion, and a housekeeper. For the last two or three years, tbe period covered by the dates in the codicils, the housekeeper was Mrs Clarkson, who was one of the defendants.

The value of the estate, said Mr Taylor, was about £15,000. That was an estimate only, as no exact valuation had yet been made. The estate comprised five mortgages totalling £3,000; shares in about ten companies, £3,500; Government stock, £1,900; savings bank deposits, £600; local body debentures, about £3,500; the freehold house in High street. Government valuation of £2,350; and furniture and miscellaneous items making up the balance. Her solicitor, Mr Collier, had acted for over thirty years prior to her death. He attended to all her legal work, and saw her quite frequently. The testatrix herself looked after her debentures and share investments, and her share dividends were paid direct to her up to her death.. On numerous occasions Mr Cillier prepared wills and codicils, his record showing that from 1911 he prepared in all ten wills and codicils. It appeared that the testatrix was accustomed to handling her business affairs, and must have been famliiar with the making of wills and codicils. The will now propounded for probate was made on December 17, 1529, when the testatrix was eighty-four years of age. Its validity was admitted in all respects. The general effect of the will was to give about fifty legacies to friends and relatives, and the residue was to be equally shared among nieces and nephews, except H. C. Stevens. The first codicil gave Mrs Irene Stevens an equal share in the residue of the estate. The codicil was simple, and its effect on the will was simple. The second codicil, made in 1933, was to effect the appointment of a new executor in place of one who had died. The validity of the two codicils was contested by the defendants of the first part substantially on the ground of want of testamentary capacity. Evidence was given by Edward Ernest Collier, who deposed to the making of the codicils. He stated in reply to Mr Hewat that at the time of the codicils the memory of the testatrix was no longer reliable, but otherwise She was able to understand things just as well. /

In reply to His Honour, witness said Mrs Irene Stevens, the beneficiary under one of- the codicils, was the wife of H. C. Stevens.

Evidence was given by George William Gibson, merchant,' in regard to witnessing the signing of the will by the testatrix. Violet Fibbs, who said she lived with Miss Stevens, a. sister of Mr Bert Stevens, testified that she took the. first codicil to Miss Fish’s house to be signed. In reply to Mr Haggitt, witness said it was Miss Stevens who asked her to take the document to Miss Fish to be signed. She did not read the codicil to Miss Fish, but told her what was in it. Witness was sure Mrs Wilson was in. the room the whole of the time. So far as witness knew, Miss Fish’s memory was good up to the time of her death.

The case was proceeding this afternoon.