PATIENT'S WILL

New Zealand Herald, Volume LXXIV, Issue 22675, 12 March 1937, Page 15

PATIENT'S WILL

. dargaville case VALIDITY CONTESTED unusual application tfO PRECEDENT KNOWN. Jai unusual application for which fcounsel could quote no precedent in • proceedings of a similar nature was |j a de in the. Supreme Court yesterday the hearing of a will case was continned' before Mr. Justice Callan. At conclusion of the case for the plainstiffs, counsel- for the defendants., Mr. submitted that on the evidence given he was entitled to ask for judgment without calling his own witnesses. After lengthy argument by both sides His Honor said he would eonsideiation to the application over night and that the Court would resume this morncase' involves an action by Anne Burnett, of Dargaville, spinster, and fkwald George Bramwell, of Auckland, solicitor (Mr. Goldstine and Mr. Wilson} for probate in solemn form of the will of Poul Enudsen, settler, of Dareaville, nulde on February 5, 1936. Knudsen died on February 23, 1936, m the Mount Pleasant Private Hospital, Dargaville, where he had been a patient for about 2* years. Former Will Revoked

The will of February 5 appointed the | plaintiffs as executors, and after pro- j riding two small public legacies, left j the residue of the estate, sworn at less j than £3500, to Miss Burnett, matron | of the Mount Pleasant Private Hos-, pitab This will revoked a will of Julv 14, 1930. appointing the Public Trustee j as'executor and leaving £3OO to Mrs. Jane Edith Gunson. of Warkworth, an d the residue to Kirsten Maria Knudsen in Denmark, a sister of the testator. She predeceased the testator, and the granting of probate of the second will was opposed by his threebrothers and sister, Kresten Knudsen, Jens Knudsen and Laurits Knudsen, of Denmark, farmers, and Else Jorgengen, of Denmark, widow, and by Mrs. Gunson (Mr. Goulding and Mr. Munro). The other defendant, the Public Trustee, submitted to the judgment of the Court. The defence denied that the second will was properly executed, and claimed that when Knudsen made it he was not of sound mind, memory or understanding, but was subject to undue influence of Miss Burnett and others having care of him. '

Auckland Physician's Evidence Dr Laurence Ludbrook, a consulting phvsician, of Auckland, gave evidence of certain diseases of the brain and the consequent occurrence of Abasia, which he described as inability to comprehend or express oneself by speech. In re-exammation by-Mr. Wilson he said that because there was loss of the power to read and write there was not necessarily present a considerable degree of intellectual deterioration. If Knudsen could add and subtract correctly it showed that his powersjn that direction were comP * Anne Bifraett said that at Knudsen's request she had opened all his correspondence and read his letters to him. There were no letters from Mr. and Mrs. Gant or from Mr. and Mrs. Uunson, but many were from lawyers. His Honor: Did he understand themr' Witness: l"es. His Honor: A very high degree of intelligence. ,

A Grateful Patient Witness said there were also letters from Denmark, most of which were in English, and at his dictation she wrote replies to them. Deceased knew his financial position quite well and often worked out figures in connection with his affairs. Witness had been under the belief that deceased had never been able to read or write. He had 110 difbculty in understanding conversations which she had with him. Deceased was a grateful patient.. . Mr. Goldstine: What was your opinion of deceased's mentality ? Witness: Intellectually he was perfect, although he was not so physically. To Mr. Goulding, witness said that deceased had never told her that he was going to leave his money to her. The first she knew of the money being left to her was when Mr. Bramwell read the will some time after Knudsen's death.

Matron and Doctor Witness said she had been friendly with Dr. Greville for a number of years and admitted writing an affectionate letter to him. She further admitted that she was partly the cause for the separation between the doctor- and his wife.

His Honor pointed out the importance of this evidence because Dr. Greville was the only qualified medical man who could give an opinion as to the deceased's mentality. Witness said she was unaware that deceased had made a Will and had not suggested the matter to him. At the conclusion of Miss Burnett's evidence, Mr. Munro said the defence at the beginning of the case had submitted that there were circumstances r which raised a well-grounded suspicion that the second will did not express the mind of the testator. He submitted that the plaintiffs had not removed that suspicion, and the onus was on them to remove it. After referring to the fact that Miss Burnett, deceased's nurse, was on affectionate terms with his doctor, Dr. Greville, Mr. Hunro said, that the solicitor who drew up the second will was, on the evidence, clearly ignorant of the terms of drawing up a 'will. / ... His Honor: Are you leading up to a motion ?

Application by Defendants Mr. Munro said he submitted at that stage that,i on the evidence of the plaintiffs, the defendants were entitled to judgment without calling witnesses. He admitted that ho knew of no precedent for such an application in a case of that type. His Honor: You know, Judges_have their weaknesses and it is very nice to know that some other .Tudgo has taken the same step before. Mr. Goldstine said there was no foundation for the suggestion that testamentary capacity had not been proved. It was obvious that the testator knew that he was making a will and disposing of his property. •."After hearing further argument, His Honor said he would consider tho application over night, and the Court would Resume this morning.