WILL UPHELD

Evening Star, Issue 22892, 25 February 1938, Page 1

WILL UPHELD

' RETIRED FARMER’S ESTATE STEP-DAUGHTBR’S APPLICATION FAILS Judgment lias been given _ by His Honour Mr Justice Kennedy in a will case of unusual interest in which testamentary capacity was challenged in a retired farmer’s estate. The plaintiif was Elizabeth Owens, of Christchurch, a step-daughter 'of the late William Journeaux, of Waikouaiti, and she sought (1) The recall of the granting of probate in his estate to Honoria Agnes White, who acted as his housekeeper; (2) a declaration that a will made previously in favour of Mary M'Lean, another housekeeper, was invalid; (3) the granting of probate of an original will (in plaintiff’s favour) to John Thomas Walter, an original executor. The grounds of Mrs Owens’s action were a lack of testamentary capacity and that undue influence was exercised upon the testator. The effect of His Honour’s judgment was to uphold the grant of probate in respect of a will made in 1935 in favour of Honoria Agnes White. His Honour, in the course of his judgment, said that William Journeaux died on the 24th day of October, 1936, having in his lifetime executed three documents, which were by various parties claimed to constitute his last will and testament. These documents wore respectively dated July 22, 1920, November 30, 1925, and August 20, 1935. The plaintiff asked that the first will be pronounced for and each subsequent will be pronounced against. The defendant Mary M'Lean asked that the second will be pronounced for and the third pronounced against, while the defendant Honoria Agnes White was interested to maintain that the will of August 20, 1935, was valid. His Honour dealt at length with the arguments adduced and the evidence, and said that he was disposed to find a memory which had become somewhat debilitated, but was still remarkably good for his age, capable of recollecting his estate, of remembering' those with claims upon his bounty, and of judging with respect to them. “ Tho whole of his actions and testamentary dispositions from the death of his wife to the end have a certain unity, and, while one may be inclined to think that he might have remembered others,” said His Honour, “ it seems quite clear that he, in 1935, was disappointed with Mrs Owens, and the quarrel with Miss M'Lean would naturally influence his final judgment. The 1935 will was made after a longer period following the new service. In the result, then, I think the court may not pronounce for the will of 1920 or 1925 as being in either case tho last will and testament of the deceased. The court pronounces for tho will of 1035, of which probate in common form has been granted. The recall of probate is accordingly refused. Tho parties were, I understand, in agreement as to costs, but as I believe r.t one stage an inti-

mation was given that they would be reserved they are reserved accordingly.” At the hearing of the case Mr I. DSargent, of Christchurch, with him Mr M. Joel, appeared for the plaintiff, Mr J. M. Paterson and Mr G. B- IkV'ilson for Mrs White, Mr F. M. Hanan for Miss M 4 Lean, and Mr E. J. Anderson for Mr Walter,