DISPUTED WILL

New Zealand Herald, Volume LXXIII, Issue 22538, 1 October 1936, Page 16

DISPUTED WILL

ESTATE AT ROTOKUA UNDUE INFLUENCE ALLEGED COURT PROCEDURE DEFINED [from our own correspondent] HAMILTON, Wednesday A complicated will easo was presented for consideration before Mr. Justice Johnston in the Supreme Court ut Hamilton to-day. Mr. Hoc applied for a rule nisi respecting the probate of n will made by Jeannio Mngdillon WhitakOr, widow, of Rotorua, Who died in Melbourne, at the age of 72, on April 16 last, and left an estate, consisting principally of cottages in Rotorua, valued at £4500. In her will, deceased loft £3OO to her brother, Henry Armstrong, and £2OO to a servant, Daisy Pcne. The residue was left in equal shares to her brother, Walter Joseph Armstrong, and her sister, Agnes Veronica Findlay.

Mr. Roe said deceased's last will was signed on January 31, 1936, in Rotorua. Caveats against the will were lodged by William and Marion Annstrong, a brother and sister, but these were later withdrawn. A third caveat was lodged by Mrs. Jessie Armstrong, wife of Walter Armstrong, and this caveat was now before the Court.

It was alleged in this document that undue influence was exercised on the testator, and that she lacked testamentary capacity in making her last will. Walter Armstrong and Mrs. Findlay Were the executors of the will, and they asked for probate on August 13 last, but owing to the caveat lodged by Jessie Armstrong, who was a large beneficiary under an earlier will, but who was now ruled out, the case was adjourned. • Mr. Potter, who appeared for Walter Armstrong, said ho withdrew opposition to the will, and would abide by the decision of the Court. Mr. Gould submitted that the proper course was for the Court to order probate in solemn form. It would be inconvenient, if not unjust, for the Court to proceed on a rulo nisi, as had been suggested. Counsel submitted that a will dated October 22, 1925, should bo propounded. His Honor said that under the method suggested by counsel for the executors very little of the .real story might be disclosed, and it was neeetsary that the full circumstances should ba investigated. That could only bo done by an action. He ordered that tho caso should bo tried by action.