WILL MADE ON A DEATH-BED

Marlborough Express, Volume XLV, Issue 64, 16 March 1911, Page 6

WILL MADE ON A DEATH-BED

' PROBATE REFUSED

CHRISTCHURCH, March 13. .- Judgment by Mr. Justice Chapman, in an interesting will case was read by the Registrar to-day The ease was that of. Hannah Copeman v. Samuel Albert Staples and Sarah Jessie Smith, an action to set aside probate of a will on the ground of want of testamentary capacity. The question raised was as to the testamentary capacity o'" Richard-Smith, a retired farmer, eighty years of age, who died on 14th August, 1910, having made the will in question on the same day. By his* will Smith left his property to his wife, a comparatively young woman whom he had recently married.. Th«v will was opposed by his only sister, a married woman seventytwo years of age, on the ground of defective execution, and want of testamentary "capacity. Both Mrs Copeland and her husband . were, to Smith's knowledge, old-age pensioners. .

"The estate," proceeds the judgment, "is small, and ended' when the sum of £500 is paid to the widow pursuant to the provision of the Administration Act. The balathce; divisible in the case of intestacy would, leave but & small sum to represent one-third payable to the sister. Further, tnie sister has very little, if any, real interest in contesting the wiil, as anything she may get will affect her pension" , His Honor refers to this fact, as it seams to have been appreciated by the testator. Ha had on the morning of the day of his death, when he was undoubtedly competent to make a will, told Dr. De R«nzi, who was attending him, that he did not want the Government to have any of his money. A few months also before his death, a Mr Shaw heard him say "that he would not leave his sister anything, especially since she got the oldUage pension, as whatever he left her.she would be worse off." On the morning of tha day.of his death1 he was clearly of testamentary capacity; ans he said to Dr. Dio Renzi, who was attending him: "I have very little to leave. It won't take me long. The little woman here, I want to see her all right."

There, was a discussion about a will initiated by Mrs Staples, wife of defendant. Dr. De Renzi injected strychnine, and under this stimulus testator's condition improved. DisDe Renzi asked testator if he. wished him to make testator's will. Testator nodded1 his assient. The doctor then asked whether he wished to leave everything to his wife. Testator again nodded his assent. The doctor then drew up a will whereby testator, left all hie property to his wife, and appointed Samuel Albert Staples executor,.

After going into the evidence at length, and quoting various authorities, his Horor held that he could npt admit the instrument to probate. As to the question of testamentary capacity, his Honor did not doubt the doctor's evidence that Smith had sufficient consciousness to understand what was said when the doctor told him that this was a will leaving everything to his wife. His Honor, however, was not fully satisfied that it represented an actual exercise of testamentary authority. It was by

n© means certain that Smith was at that moment capable of grasping the fact that he was excluding his sister from all participation in his estate. Though his Honor regretted not being able to give effect to an instrument which, was hot only a proper will for testator to have made, but most S roper for him to make, he (his Conor) was obliged in the circumstances to say that, as he was left in considerable doubt, this doubt ought to be resolved in th© way in which it had always heretofore .been resolved^ namely, by the answer "deficit probatiq." Costs were ordered to be paid out of tho estate.