DISPUTED WILL

Evening Star, Issue 22193, 22 November 1935, Page 9

DISPUTED WILL

TESTAMENTARY INCAPACITY ALLEGED CASE FOR THE DEFENCE That objection had apparently, been taken to the bequests to persons who were not relatives was stated by counsel when the defence was opened in the case ■ being heard by His Honour Mr Justice Kennedy in the Supremo Court, in which opposition was offered to a grant of letters of administration in the estate of John M'Nickle, 94 years of age, ,who died in Dunedin last year. The executors of the will, made shortly before the death of the testator, had declined to apply for probate, and proceedings for letters of administration in solemn form were brought by Miss Sylvia Godfrey, a single woman, of Wellington, who was one of the beneficiaries. The application was opposed on the ground that the testator was not of sound mind, memory, and understanding when the will was made, and it was also alleged that undue influence had been brought to bear on the old man when the will was executed. Messrs J. S. Sinclair and R. D. Jamieson appeared for the plaintiff (Miss Godfrey), and the defendants were represented as follows: —James M'Nickle and Annie M'Nickle, of Ireland, and Mary Wassell (Mr A. N. Haggitt), Verna G. Livingston (Mr C. L. Calvert), Eva M'Nickle (Mr F. B. Adams), Robert Livingston, Alma Clara Livingston, Elizabeth Scott, and George Livingston (Mr F. C. Dawson). Mr Dawson also appeared for the trustees, Alfred Miller and Donald Hutcheon, who, he stated, would take no part in the proceedings, and would abide by the decision of the court.

Opening the case for the defendants, Mr Dawson said that the deceased came to New Zealand in 1865. He was accompanied by his sister Katherine, who subsequently married one Livingston and was the mother of the family referred to in these proceedings. For some years after his arrival the deceased worked in different parts of the Dominion, and approximately 60 years ago went to live with the Livingston family, who were then farming at Waitahuna. He remained there for a considerable number of years, working as one of the men on the farm and being paid wages slightly above the prevailing rates. He was treated as a member of the family; On various occasions in later years he went away on farming and mining ventures, but he always returned to the Livingston home, treating it as his own. He was at tbe home of the Livingstons when_ the farm was solid about the beginning of the war. He then went to Dunedin and purchased four sections in Moana Crescent, where he built the house which had been discussed in those proceedings. There he lived until the time of his death. For the major portion of the time he merely occupied the lower portion of the house, letting the top portion to tenants. He remained constantly in touch with the various members of the Livingston but from the time of his coming to New Zealand until his death he went home to Ireland only once, approximately 45 years before his death.

In 1930, Mr , Dawson added, M'Nickle’s tenant in the house was a man named Lindsay, who paid rent, but also did work for the deceased without expecting or receiving remuneration. He left the house in October, 1931, but remained a 'close friend of M'Nickle’s. In the later months of his life the old man consulted Lindsay on many matters, and Lindsay gave what assistance he could. The deceased had, in 1922, made two wills with the Public Trust Office, and in 1924 he made another there, omit-' ting two of the previous beneficiaries. In 1932 he made a will in the offices of Moore, Moore, and Nichol, who had been his solicitors over a long period of years. At that time, though the deceased was failing, there did not appear to be much doubt that he had the necessary capacity to make a will. This will was made subsequent to his meetings with Miss Godfrey, when the question of marriage was discussed, and she did not appear in any way as a beneficiary. In 1933 the deceased started to fail, and his memory of names and incidents was somewhat muddled. In August, 1933, he was severely gassed, and from that time people in close contact with him noticed a considerable change. On the following Christmas Day he fainted, and the change became even more pronounced. He became muddled in his conversation and was unable to recall details of the money ho had. He began to forget people with whom he had been in close contact all his life.

bn April 20, 1934, he went into the Public. Trust Office with Dr Dunlop, who brought a draft will which he had

prepared. The sole beneficaries were to be M'Nickle’s brother, and sister, whom he had not seen'for 45 years. The responsible officers had a long Interview with him, and then had considerable doubt as to his capacity to make a will. With little persuasion he altered the proposed will, reducing the benefits to his brother and sister considerably. Arrangements were made to have him examined, but about the same time he approached Mr Moore to have a further will made. Mr Moore had doubts as to his capacity, but agreed that he should come back the following day with two of his friends. He returned two days later with a Mr Miller and a Mr M'Kibbin. _ A long discussion took place, in which it was evident that Mr M'Kibbin was trying to determine the nature of the will which the old man should make. At that time neither the deceased nor Mr M'Kibbin disclosed that a will had been completed in M'Kibbin’s house three days earlier. The terms of this will differed from those of the will at the Public Trust Office, and included a cousin Annie, who was unknown to _ the relatives. Mr Moore was not satisfied as to the man’s capacity, but agreed that he should be examined by medical men nominated by the deceased and his friends. Dr Evans and Dr James Fitzgerald examined the deceased the following day, Dr Dunlop also being brought in to the conference. All three were definitely agreed that the man did not have the necessary capacity. He was evidently suffering from delusions regarding the Livingston family. Throughout this period he had also been in contact with Lindsay, who was unaware of the nature of the examination, and was persuaded to go with M'Nickle to the Perpetual Trustees. An appointment was made during which instructions were given for the preparation of a will, the terms of which differed from any previous will, the majority of the names being suggested by Dr Dunlop. Lindsay’s suspicions were not roused, as all the names were familiar to him, and he was unaware of the contests of any other will. On a subsequent visit Dr D’Ath and Dr Dunlop were present, and the will was completed. Dr D’Ath apparently had no knowledge of what had transpired at the earlier conference at which Dr Dunlop had been present. Dr D’Ath appeared to have accepted Dr Dunlop’s opinions as to the capacity of the man. Evidence was available to show that at this time the old man’s memory was very poor and that he was easily swayed. M'Nickle kept in close contact with Lindsay, who soon found that the deceased did not understand his affairs, and that he (Lindsay) had apparently misunderstood the man at the time the will was made. Lindsay pointed out that he was unable to assist the deceased with his affairs unless he had a power of attorney. At that time the old man was apparently worried about accounts, and was being asked for money without knowing any details. Lindsay took the power of attorney in order to make investigations. They were in progress when his authority was cancelled. It was significant that he had approached Mrs Wassell for the books of the deceased and had been met with a refusal to hand them over, though she did give them to him subsequently. The books were handed over on August 2, and Mrs Wassell apparently then formed the opinion that Lindsay had the power to turn her out of the house.

Things moved quickly after that,, Mr Dawson continued, and on August 11 Lindsay’s authority was cancelled. At that stag© his inquiries had shown him sufficient to raise at least suspicion in his mind as to the reasons for the interest which Mrs Wassell was taking in the matter. He immediately commenced proceedings to have the affairs of the deceased placed in the hands of the Public Trustee. Ho gave notice of this to Holland and also notified the Perpetual Trustees and the banks concerned. Holland was also notified by the Perpetual Trustees that they would not hand over papers until the proceedings were settled. Yet on the following day Holland took the two doctors to the house, and the will which was the subject of these proceedings was signed. The doctors were not notified that such proceedings were pending. The will which was completed on that occasion was, counsel submitted, not the actual wish of the old man. He was then not of sufficient testamentary capacity to make a will. The doctors had no prior knowledge of the man. They were unaware of any delusions from which he was suffering and were, in fact, misled by the testator. _ The evidence of the old man’s condition showed definitely that the ideas he gave to the doctors as apparently his own had, been placed in his mind by someone else. Counsel could not call evidence by any of those who might be interested in having the will pronounced against, but this did not imply an admission of such an allegation as that Eohert Livingston had offered Miss Godfrey a bribe. It would be noted that Alma Clara Livingston was adopting an attitude against her own'interest, as she was named as a beneficiary under the last will and under that alone. It was suggested that the document which was under consideration in these proceedings

was prepared between Mrs Wassell,' Holland, and possibly others, whom,; naturally, the defence was unable directly to identify. It was also suggested that the ideas in that will had been put into the old man’s head sufficiently strongly to enable him in effect to “ bluff ” the doctors, whose examination of him was carried out without prior knowledge of the delusions from which he was suffering and without knowledge, other than that which they obtained from Holland, that the information which the testator gave was correct.

Evidence wag given by Donald Hutcheon and Alfred Miller, the trustees of the will. In the course of his evidence this morning Miller stated that M'Nickle told him he could have married Miss Godfrey. He offered to settle £I,OOO on her but she wanted £1,500. The case, which is in its fourth day of hearing, was proceeding this afternoon.