Appeal Allowed In Will Case

Northern Advocate, 9 July 1938, Page 6

Appeal Allowed In Will Case

iPer Press Association. Copyright .l \ WELLINGTON. This Day. The Court of Appeal delivered judgment in the appeal case of William John Kemp, retired builder, of Onehunga, against James Alexander Smith and William Benson Smith, farmers, of Papakura. Mary Kemp, wife of appellant, died at Auckland in May. 1937. at the ago of 69, leaving two wills, one dated October 12, 1934, appointing respondent. J. A. Smith, as executor, and leaving all her estate to both respondents. who arc her nephews. The other will was dated April 8, 1913, under which the appellant was appointed executor and sole beneficiary. Probate cf the earlier will was granted in common form to appellant in June. 1937. Following this grant, respondent began an action in the Supremo Court at Auckland to have it recalled and obtain a grant to themselves of probate in solemn form of the 1934 will. Appellant alleged that at the time the 1934 will was executed, deceased was not of sound mind, memory and understanding, and that it had been obtained by undue influence. Mr Justice Ostler, before whom the case was heard last December, held that the defence of testimentary incapacity had failed, and that undue influence was not proved. He accordingly pronounced in favour of the later will, and recalled the probate of the earlier one. Kemp appealed against this judgment. The Appeal Court was unanimously of the opinion that those propounding the will had failed to discharge the onus resting upon them, and had not affirmatively satisfied the court that the will propounded was that of a competent testatrix. Accordingly, in its view, the trial judge should not have pronounced for the document or October 12, 1934. and the appeal would therefore be allowed;- The cost of all parties were ordered to taxed and paid out of the estate.