WOMAN'S SECOND WILL.

New Zealand Herald, Volume LXII, Issue 18965, 12 March 1925, Page 10

WOMAN'S SECOND WILL.

JUDGE REFUSES PROBATE. QUESTION OF MENTALITY. NIECE'S CLAIM SUCCEEDS. [BY TELEGRAPH.—OWN CORRESPONDENT.] BLENHEIM. Wednesday An interesting will case has occupied the attention of Mr. Justico Ostler in the Supreme Court for a couple of days. It ' arose out of an application by the sole executor, Henry Green, of Patumahoe, Auckland, for probate in the estate of his late aunt-in-law, Mrs. Sarah Amelia Dal- ! ziel. formerly of Blenheim. The estate was sworn at £4OOO. Objection to probate was lodged by Emily Jane Gardiner, a young woman, who is a niece of tho testator, and was an important beneficiary under a previous will which was superseded by the will in dispute. Mr. C. 11. Mills appeared for her, the basis of the action being alleged want of testamentary capacity on tho part of the testator, on the ground of insanity, and alleged undue influence. Mr. A. A. McNabb, with Mr. F. F. Ileid, appeared for the executor. Mr Mills said the position of the caveator was that in 1915 she left her home in Motueka to live with the late Mr. and Mrs. Dalziel, her aunt and uncle, as they were unwell. As time went on the niece was called upon to do more and more of the work about the farm, and finally .she was working very hard, both indoors, and out. She did all this without receiving any remuneration whatsoever, but Mr. and Mrs. Dalziel discussed her position and it was agreed between them that she should have the homestead block of 29 acres at their death. Mr. Dalziel's will, leaving the properties to his wife, was made in 1897. He died in August, 1918, and his wife in 1924, at the Nelson Mental Hospital. When Mrs. Dalziel found after her husband's sudden death that all the property was left to her she questioned a neighbour as to what she should do, and he advised her to make a will. She did so. That will was in favour of the caveator. Some time after another will was made under which the property was distributed among a number of relatives, including both Green and Miss Gardiner, and that was the will under dispute. If upset, it would be replaced by the first will. A great deal of evidence was called, particularly ir< regard to the testator's mental condition. After hearing lengthy legal argument His Honor said he entirely disregarded the allegations of undue influence by Mr. Green. He mentioned specifically that he made no imputations against either Mr. or Mrs. Green, both of whom he believed had acted in good faith, but. he dismissed the motion for probate on the grounds that it had not been shown to the satisfaction of the Court that when the testator executed the will in dispute she had fully recovered from the mental stress she was known to have been suffering at. a prior date. Costs were allowed both' parties out of the estate. Probate in the first will will now be appiied for.