DEAD SOLDIER'S WILL.

New Zealand Herald, Volume LIII, Issue 16375, 1 November 1916, Page 9

DEAD SOLDIER'S WILL.

THE DOCUMENT MISSING,

ADMINISTERING} ESTATE.

PROBATE G: VNTED OX LETTER.

The question as to whether a letter communicating a deceased soldier's intentions respecting the disposal of his estate after his decease can be treated as a will or a. testamentary document was the subject of an important judgment delivered by His Honor Mr. Justice Hosking, at the Supreme Court yesterday, under the terms of section 34 of the War Legislation Amendment Act, 1916. The application before the. Court was for letters of administration in the estate of a deceased soldier with the will anne -d, or. in the alternative, for letters of administration without the will, if it should be held that the document propounded as the testator's will could not be treated as a testamentary instrument, or be held as admissible in evidence of the contents of a lost testamentary instrument. Earlier Will Destroyed. The deceased soldier, Trooper Charles Cyril Milling, was a member of the 4th, Waikato, Mounted Rifles. He fame to New Zealand about five years ago, and engaged in farming at Te Kuiti. At the; outbreak of the war, he joined the New Zealand Expeditionary Force, and left, with that bo, - for the front. At the time of his enlistment his solicitors held a will he had made by which he appointed a friend and neighbour of his, Mr. Albert 1 Goldfinch, his executor. After providing for the repayment to his father of a sum', of £1800, borrowed from him, he gave \ the residue of his property to a young lady, to whom he was then" engaged"to be" married. In August or early in September ho telegraphed to his solicitors that, as he was passing through by train from Auckland to Wellington, he desired to be met at the train with this will. He was met accordingly by the solicitors' managing clerk, and the will was then destroyed, with the intention of revoking it, the deceased giving as his reason for so doing that he was on his way to Wellington to break off his engagement with the lady referred to. A few days before leaving for the front he wrote a letter to his father, and this letter is the document propounded for probate as a soldier's will. Letter to His Father. The material part of the letter after referring to the expectation of his leaving New Zealand, was as follows : "I made my will before I left, as one never knows what will happen these times, and we do not know for certain what our destination will be. My solicitor, I think, wrote to you, but. I "have altered it [ since then, as I have broken mv engagement, as it is not fair to be tied down, ;as goodness only know 3 how long I shall be away. This is the will I made, so that you will have some idea. I am . , putting the farm at £7 per acre, and its , real value is considerably more than that. After paying off the mortgages the balance 'l,ani ?', oi Which 1 P - V - vou back the i.ltfUo I borrowed from you. This will leave £700. Then I have £1000 worth of •'ock, making £170 Mr. Goldfinch has ,'. li* of . that, Ed 8 has the remainder. My life is insured for £400, to be divided I bo' .een the girls." 'ihe only other evidence as to the existence of a will was a paragraph in the fathers affidavit to the effect that while the son. when in England in Januarv, tyio, was at home for a few davs he did not mention his will, but hinted"indirectly that he had left the £400 to his sisters* The new will the deceased referred to as made cannot be found or heard of, although search has been made in many quarters and information concerning it asked for by advertisement and otherwise. Essential Parts of Will. (( "The question then," said His Honor, " is whether the letter can be admitted to probate as being the will itself of the deceased. I do not think it can. There is no evidence earlier than the letter to showthat it was intended to be his will, and the tenor of it is inconsistent with the notion that it was intended to be anything n ore than an intimation to his father of th» contents of the will he says he had made following on the alteration of his prior will. In other words, the letter itself, in the absence of all extrinsic evidence to the contrary, demonstrates that it was not written with testatory intent. Then the question is whether the letter may be used as evidence of the contents of" the will which be says he has made, and of which he purports to give the contents. I infer that it was made while he was a;oldier on active service, because it followed upon the breaking off of his engagement to bo married, and that took place while he was on active service. All that is necessary in the present case is proof that the new will existed. That proof is- supplied by the letter itself, in which he states he has made a will. The existence of the will being proved, it remains only to establish what its contents were. The letter, which is proved to be in bis own handwriting, is an admissible instrument of evidence for that purpose. The several dispositions the deceased made are specified in his letter to his father, and those dispositions exhaust what he describes .to be bis estate. The object of the letter was to inform his father how lie had disposed of his property. T am satisfied the Court has before it the essential parts of the will. The Court is. therefore, prepared to grant administration to Mr. Goldfinch, subiect to the required security." Mr. G. P. Finlay appeared for the applicant.