PATERSON WILL CASE.

New Zealand Herald, Volume LIX, Issue 18104, 31 May 1922, Page 10

PATERSON WILL CASE.

JUDGE GRANTS PROBATE.

FREE AND CAPABLE TESTATOR.

Reserved judgment was delivered by Mr. Justice Stringer at the Supreme' j Court yesterday in the action to set asidn tho ■will of James Muir Paterson, who died in June, 1921, on the grounds of testamentary incapacity, fraud and undue influence. The Public Trustee (Mr. Gouldmg), as executor of the v.-ill, applied for probate. Three 'of deceased's children, JB. Paterson, J. A T-itsrson, and Mrs. L. Stevenson (Mr. Leary) lodged a caveat against the grant of probate. The evidence at the hearing was aimost wholly on affidavit. It wr„9 stated that the estate was sworn at unewfr £3400. The will, which was made in March, 1921, left £500 to a daughter, Mrs. B. J. Montgomery, with whom the deceased had lived for many years. Several grandchildren received legacies each, and the balance of tho estate was to oe divided equally among all deceased's children. A previous will had been made in 1912 providing for unequal shares among the chi'dren to compensate for presents of real estate amounting to £20,000, which the testator hod made to his children previously.

Questions lor the Court. His Honor said he had to answer questions raised aa to tho testamentary capacity of the testator and as to whether or not the Trill was made as a result of undue influence exercised by Mrs. .Montgomery. At the time of making the will the testator had attained the age of 87. Prior to 1912 he hod from time to time acquired various properties which he had put in the names of one or other of his children, it being understood that the income therefrom wa* to be paid to him for life. After reviewing the details of the case His Honor said it had been contended by *Mr. Leary that the evidence disclosed such deficiencies of memory on the part of the testator as to render him incapable of making an effective will. His Honor could not agree with that contention. It had been further contended by Mr. Leary that the will was prepared in circumstances which ought to arouse the suspicion of the Court and to cast upon the propounders of the will the onus of removing that susp'cion. In His Honor s ODinion the circumstances did not bring it within the principle mentioned, but, even if they did, the suggested onus arising therefrom had been fully satisfied.

Unfounded Contentions. It remained to oonsider the quesUon as to whether the caveators had established their contention that the will was executed by reason of undue influence exercised by Mrs. Montgomery and her husband or either of them. To be undue in the eye of the law tbero must be coercion. It was not sufficient to establish that a person had the power unduly to overbear the will ol the testator. It was necessary also to prove that in tho particular case that power was exercised, a.nd that it was by means of the exercise of that power that the will, such as it waa v had* been produced. It was no doubt truo that, owing to the physical weakness of the testator and his dependence upon the Moutgomerys for that care ana attention which his condition required, they were in a position in which they might, had they thought fit to do so, influence unduly the testator in the mak'ng of his will, but the evidence entirely disproved it. It had been contended that the fact that the testator during the last few months of his life made substantial gifts to both Mr. and Mrs. Montgomery was a istrong indication that they exercised a dominating influence over tho testator. This contention was unfounded. That the testator made such gifts was true. A Devoted Daughter. Continuing, Hi» Honor said it was clearly established, and indeed it was not disputed, that Mrs. Montgomery for many years had been devoted fco her father and had bestowed upon him the most affectionate care and attention in circumstances which at times were of a most\ toying and irksome character. It was also admitted that Mrs. Montgomery " was easily the poorest of tho family." Given these i facts v/hat more natural than that the testator, actuated by gratitude and a desire to recognise his daughter's affectionate care of, and attention to, hint, and possibly also with a view to bringing her financial position into something like an equality with the other members of the family, should make her a special object of his bounty, as he had indicated on many occasions he intended to do. If so. the makinar of the eifie during bis lifetime waa merely another instance of the life-long, policy of the testator. The allegation of undue influence failed. His Honor, in granting probate of tha will, concluded : I think the will propounded is that of a free and capable testator; that when executed it was fully understood by tine testator; that it gave effect to tho frequently expressed intentions of the testator; that in the circumstances it was a rational, just and proper will; and that it was in no way the result o" undue influence exercised by Mr. and Mrs. Montgomery or either of them.