ATTESTATION OF WILL.

New Zealand Herald, Volume LII, Issue 15944, 15 June 1915, Page 5

ATTESTATION OF WILL.

HELD TO BE INVALID.

IMPORTANT HAMILTON CASE.

An important will case was tried at the Supremo Court, Hamilton, on Friday and Saturday last, when the parties concerned were Albert Upton, of Waimai, farmer, v. Pierre F. Tuypens and Estelle Donny, next of kin of Conrad Camilla Antoine Tuypens, farmer, of Glen Murray, deceased. The' public trustee was joined as a formal defendant. The action was to prove in solemn form the will of the late Mr. C. C. A. Tuypens. Mr. H. Gillies appeared for Mr. Upton, in support of the will, and Mr. W. J. Napier for the next of kin of the deceased, who were joined as defendants to oppose the will.

The defence was that the will was not legally executed, and was not the will of the deceased; also that the deceased had no testamentary capacity at the time he made the will as he was so weakened by illness as to be physically and mentally incapable of making a will. By the terms of the will the whole of the deceased's property was left absolutely to Mr. Upton, a stranger in 'blood. By a letter which was mentioned in the pleadings tho deceased modified tho will so as to impose upon Mr. Upton the obligation of paying £25 a year to the deceased's father during his life, and also of paying certain debts. Upon tho first attesting witness being called to prove tho signature of tho deceased, he deposed that the deceased signed hi? name to the will in bed, but that he, tho witness, took the will out of the bedroom in which the deceased was lying, into an adjoining kitchen, and that ; there, on the kitchen table, both witnesses signed their names to the will. It was contended by Mr. Gillies that the will having been brought bade to tho testator, and the witnesses having acknowledged their signatures, it must be assumed that it was properly attested. His Honor, he wever, ruled that the case could go, no further, as the proof of the execution of tho will had failed. His* Honor referred to Jannan on wills, and several decided cases, to show that where witnesses attested the signaturo of a testator to his will, they must both sign not only in tho presence of each other, but also ' in the presence of tho testator, and he was I obliged to hold that as they had signed their names in an adjoining room the attestation had not been made, in tho presence of tho testator. The will was therefore invalid, and ho must pronounce against it. As there was no suggestion of any wrongdoing in connection with the matter, tho costs of a,]] parties would bo paid out of the estate, tho executor being allowed costs as between party and party on tho amount of the estate.

His Honor said that as the point was one of great importance, it would doubtless bo duly recorded in the authorised law reports.