Probate of Will Case

Manawatu Times, Volume LVI, Issue 7106, 15 March 1933, Page 8

Probate of Will Case

SUPREME COURT JUDGMENT FOR PLAINTIFF Which of two wills executed by the late George McCarty, of Plimmerton, should bo granted probato was a question Mr. Justice McGregor was called upon to settle in the Supremo Court recently. Tho lato Mr. McCarty died on July 22, 1932, aged 78, leaving an estate assossed for death duties at £3500. Under a will dated April 15, 1932, deceased named a son-in-law, William Read, law accountant, of Wellington, and a son, William McCarty, executors. William Read, plaintiff, asKea tub Court to pronounce for tho will dated April 15, 1932. Defendant, William McCarty, traveller, a son of the deceased, and the other executor of tho estate, in his statement of defence, alleged that the will propounded by plaintiff was not duly executed according to tho provisions of the statute. He contended that at tho time the will purported to have been executed deceased was not of sound mind, memory, and understanding, and was so impaired physically and mentally by illness that he was unable to manage his affairs, or to form a rational opinion as to, or originate ideas as to, the extent of his property or the claims of others upon his bounty, and did not understand the value of the dispositions of the will or its effects.

As a further defence, it was contended that deceased did not know and approve of the contents of tho will, and that tho execution of tho will was procured by tho undue influence of plaintiff or his wife, or of both of them. It was alleged that deceased executed his last true will on Juno 2S, 1929, and that this will differed from that of tho will of April 15, 1932. It was alleged that the will of June 2S, 1929, was destroyed by plaintiff, but by reason of tho incapacity of deceased and the undue influence exerted over him by plaintiff deceased never revoked tho will, which should be admitted to probate. Defendant asked the Court to pronounce against tho will propounded by plaintiff and to pronounco for the will of Juno 2S, 1929. In reply to defendant’s counterclaim, plaintiff denied that tho will of June 28, 1929, was destroyed by him, and denied each and every other allegation contained in the counterclaim. Elizabeth Martha Read, wife of plaintiff, said that for the greater part of the 15 years her parents had resided at Plimmerton she spent most of tho week-ends with them. fene also used to visit them frequently when they lived at Palmerston North. It was untrue to insinuate that she and her husband had been “spongers” on her father. Before her death, her mother asked her father to break up their home as soon as she had gone and return to Plimmerton. She also asked witness’s husband to look after her father. Her father was quite sound mentally when lie made his will. She was present when her father made his will, and her brother William was also present. Once at Plimmerton tier father told her that he wanted to leave her husband something, but she told him not to do it, as it would only cause trouble.

In delivering judgment for plaintiff, his Honour said that plaintiff had proved that tho will of last year was duly and properly executed by the testator, and he was satisfied that Mr. McCarty was competent to understand what he was doing. ‘‘lt seems to me,” said Mr. Justice MacGregor, ‘‘that the plaintiff has proved affirmatively that the testator knew and approved of the contents or the will. That being so, tho onus is now cast on the defendant to produce evidence of the undue influence of Mr. Read or Mrs. Read, or both. Undue influence is a very difficult thing to prove indeed, and the testator’s will must have been proved to have been overcome by some other will. ‘‘lt is quite obvious that there is no evidence of such undue influence, anu I can find none,” he continued. ‘‘The will was a fair will, and the broad scheme was the same in the three wills that deceased had made. It expressed the exact wishes of the testator, and there was no evidence of coercion. That being the case, in my opinion all of the defonces have failed, and the will of 1932 must bo admitted to probate.” Tho counter-claim was accordingly dismissed.