AN INTERESTING WILL CASE.

Marlborough Express, Volume XXXIX, Issue 62, 14 March 1906, Page 4

AN INTERESTING WILL CASE.

INCIDENT IN KAIKOUK-A

In the Supreme Court at Ghnstchurch His Honor Mr Justice Denniston heard the case Monk v. the Public Trustee. The action arose from a dispute as to the validity ot a will, alleged to be that of the late Thomas Goodacre, late of Comvay 1 lat Goodacre died on October 29th, 1904 and alter his death a will was produced bequeathing to Margaret Monk, ot Comvay Flat, all his property, real and personal. The validity ot this will was disputed, and a charge ot havin"- forged it was brought against the solis of Mrs Monk. The case was thrown out by a Grand Jury when taken to the Supreme Court, and the plaintiff now. asked that probate ot the will should be granted, and such other relief given as the Court thought The statement of claim set forth that the will had been explained to Goodacre, who had been ot sound mind and understanding, and had understood what he was doing. The will had never been revoked, and as deceased had left no relatives known t^o the plaintiff, the defendant (the I üblic trustee) should bedirected to cxcCUTho^aient of defence set forth that the document alleged to be the will of T. Goodacre was not a will, inthe will was alleged to have been signed, of sound mind. _ J\ir Donnelly (for claimants) called William Monk and Mr Tom Monk brothers. The latter said he drew up the will and took it to the bedside of the dying man,, who ™|3 l"te s^": sible when he signed. His brothei signed as witness. There was no other witness readily available. Mr Stringer (for the Public Trustee) called Ed. Barton, manager of the Bank of New Zealand, who gave formal evidence; and put in the sworn evidence of Dr. Francis, who said ho visited deceased a few hours before the alleged signing, and did not regard him as of sound mmd. Both the body of the will, which was written by lorn Monk, and the signature, contained a small "g." whereas Mr Goodacre s signature contained a large i*. Counsel also pointed out that Miss King, who was in the house at the time was not called to witness the Wl.His Honor said that the onus-of proving that the deceased had been of sound mind and understanding at the time of making the alleged will lay on the plaintiff. The evidence, brought as to. the deceased's condition at the time had been absolutely confined to that of the two sons of the plaintiff, and it was of an eminently unsatisfactory character. The two sons of the plaintiff had prepared and executed a will a few hours before the death of the deceased. No other person had been present, and the alleged testator had admittedly been in a condition in which he was physically incapable of signing. One of the sons had therefore guided his hand. That fact was in itself a weakness in the plaintiff's case. Then there were obvious contradictions in /the evidence of tne two young men in Court, .and when questioned by a detective shortly after the signing of the will. If the case stood alone on the evidence of the two young men, he would say that it had come before the Court under circumstances of very-grave suspicion, and that he would have had very great doubt about that the plaintiff had discharged the obligation placed upon her. The case was certainly one in which every bit of'acTditionaf evidence available should have been placed bef of c* - the Courts. Yet not one of the persons about the house immediately prior to, at thejtime of, and subsequent to, the signing of the will had been called. The" most important element in;.-the-'case was the sworn evidence of the doctor, who had seen deceased a few hours before the signing of the wily The doctor had stated definitely thsrt the deceaseds mind had been,,clouded, and that he had not been ijj"a condition to execute a will. It wal clear from the medical evidence that the-man had been mentally and physically incapable, and it would be opposed to all the principles of the law that the evidence of the two young num could be held to be sufficient. He would refuse probate, and hold that the deceased had not been of testamentary capacity at the time of making the will. Mr Donnelly applied for costs from the estate for the plaintiff/and the point was held over for argument.