MAORI WILL CASE.

New Zealand Herald, Volume XLV, Issue 13744, 8 May 1908, Page 7

MAORI WILL CASE.

! ' INTERESTING' JUDGMENT.. \ ' ; ' \ ' ''.'-''■■'"■; i < QUESTION OF UNDUE INFLUENCE. | !-• \ , ; I ""* THE WILL UPHELD.I . • , ' \| : '■■ Judgment was delivered yesterday by [ Jackie Edger in the Maori will case, in '.'• wliirji Mr. Henaro Kaihau, M.P., sought [ ./'\ to uphold the will of an old Maori woI '■■'■.' man named Mihi Riwi, in whose estate \\ ." 'he was one of the beneficiaries. The will was opposed by the grandchildren of.tes- • - tatrix, on the grounds of alleged forgery, ' ; undue influence, and insanity. Mr. Parr •■'V" appeared for Mr. Kaihau,, and Mr. ■ Hogarth for the grandchildren. ... . His Honor, before delivering his deci- . sion said he was taking the somewhat .'"'' unusual course of asking the native assessor to give his opinion of the case first. i ! ~ One | reason why lie did this was on account of the charge of bias that had been i' V made against him (Judge Edger), and he '■':':." thought it quite proper that the native as- ' sessor shold give his opinion first. ; The assessor said that the conclusion he had come to regarding the case was that • the drawing up of the will, and conse- ' quent transaction had not been made suf|pi ficiently clear. It had been said on one side that the testatrix was of sound mind , and intellect at the time" she made the will, but his opinion was that the old lady .■was not in her right mind at the. time /she drew up the document. The will "was drawn .] up by Henaro Kaihau's father-in-i. law; his wife was present at the time it was signed, and a native named Brown, I.; who was under Kaihau's domination, was . also present. He (the assessor) was, thereV' fore, of the opinion that the will had -V - Icon-drawn up under the influence of Hi ' Kaihau, even though- ho -was not in -the, : '< room at the time. It Mas his opinion ' ! '-"■' that Kaihau held some influence over the '"■-.l' testatrix. These were the reasons why he did not regard the will as satisfactory. His Honor, after reviewing the evidence v. at some length, said that there were - three main points to be determined in the |,-•'■'•.;'■ case. These were: (1.) Was the testatrix of sound disposing mind when she signed the will? (2). Was undue influence exer- ? ' cised over her by Henare Kaihau, caus- ; ing her to include him as • a beneficiary? ;V * (3). Did she fully understand the will, ,and duly execute it as her last will and ;. -testament? . • "It may be added," said His Honor, ;-. •"that the real contest is not so much whether Henare Kaihau shall obtain the ; - property < mentioned in the will, as whe- ;: ther the aspersions thrown on his charac- }> ter in connection with its execution can t' 'be cleared away. The witnesses called for |: the .objectors are mostly disinterested per- [\ sons, several of them Europeans, who deft"; pose to incidents tending to show that H . the testatrix was, if not under mental in--1 capacity, of feeble intellect, owing to senile § decay. The most prominent of such inciP dents s was that she was in the habit of wandering about and trespassing on other 1 people's property, ,on one occasion proposW ing to take up her quarters for the night '. in the. lobby of the post office, having it- with her -a bulky swag of clothing, also % ' * large clock and other articles. She was, % >,;.' however, induced to leave the post office, I : but, was ultimately arrested-with the '- swag in her possessionand sent, to gaol by the justices. The propounders of the [ will allege that on this and similar occasions she was under the influence of . ' 'drink; but the Court does not . considerftiis'proved. As to the charge of undue • influence; it cannot be denied,that, situat- . Ed" lis the testarix was, living'mainly upon v the bounty and at the home of Henare Kaihau, she must have been constantly sensible of his power and influence, he _ being riot only a member of Parliament, ' -. but a. man of ability and personal pres- ?'■ tige. The" circumstances attending the execution of the will were ■ also such as ' to cause suspicion. The, witnesses and & other persons 'having to. do with its pre- / paration were all more or less interested, ..'• as being.either related to Henare Kaihau , or living at his kainga, and partaking of . , his continuous hospitality. ..-..- ''On. the other hand there is clear and r • positive evidence that it was the deceased's own wish and intention to leave her property to Henare Kaihau, she having .expressed such intention on more than one occasion during.the years she lived at his f , kainga. It is also true that he had claims " p upon her. in return for his hospitality in providing her with a home in her last years: and that the objectors, her grandchildren, were hardly known to her. Coun- . sel on both sides have dealt exhaustively with the definitions and principles of law ■fi;£fj to ybe considered in deciding whether a testator was of sound disposing mind, or ;■'; subject to undue influence ; .and have re- - I- ferred to numerous decided cases bearing |j;|; /upon :these points. : After fully 'consider- : : tag the. arguments adduced, and the cir-

rumsunces of the case as disclosed by ' the evidence, I.conclude that it has not , ' •been shown that the testarix was mentally • '- incapable of making her will, nor that she v '" , did so under stress of undue influence from .Henare Kaihau. I hold.it proved / : that she understood that she was leaving ' ' a share of her property to him, and that the document produced was duly executigg'/ed by her in accordance with law. To hold otherwise would mean .that the evi- , donee' detailing the circumstances of the .drawing up and signing of the will was ■■ - false. •'• I am not prepared to hold that it V was false, notwithstanding that it was the evidence' of interested persons, and that S | there are supicious circumstances in connection with the will. It has been point- ,-- ed out that the technical effect of the wording of the Will is to make Hen are Kaihau and Ngahuirangi (the devisees) joint tenants, with- right of survivorship. i I't is doubtless true that the testarix did |; not understand th.-ft this would be so,' ■ ' - neither probably did Flayell, who drew £. up "the will., or any of the persons con- |\. cerned. But I do not think that this alone would justify the Court in refusing to uphold the will*" ~ His Honoi' added that his opinion did ;'. not agree with that .of the native assessor. /-Under the Act, however, the assent of the assessor was not essential, to a decision of the. Court, and, in this instance, he had decided to over-rule his opinion. The, decision of the Court was that the will be upheld, for such part of the pro- ' . perty as could pass under it, having re- .' yard to any restrictions there may be on the title textile several lands effected. -After judgment had been given the ques- ;* tion of probate was brought forward by' /;: -Mr. Pan. .Judge tiger said that there were 50! awes at. Whangarei that could not pass i under the *,yill. There was no restriction ' With vegarc to the Waiuku land. ■'. | ,;;, - Mr. Parr: We are willing to take an • order that will admit us to probate, j '; One of the objectors to the will asked [feifi s '? ";r judge ;to appoint successors to the- \. Whaugam land. ; \ "is Hbtior advised the uppiijant to .make the application in roper form. mn ' ■ *-"'' rheumatism, backache, faceaehe, earISoj'l«'i.lw^.ncui'alKiu, and ; other, muscular - pains ; ' lth r* can equal ! WITCH'S -' OIL :. (regis- . tared). liiliiiil I