PROBATE OF WILL

Otago Daily Times, Issue 22546, 13 April 1935, Page 2

PROBATE OF WILL

QUESTION OF TESTAMENTARY CAPACITY CODICILS SET ASIDE PRONOUNCEMENT FOR WILL In the Supreme Court yesterday his Honor Mr Justice Kennedy delivered his reserved judgment in the action brought by Herbert Charles Stevens and Edward Ernest Collier for probate in solemn form of a will and two codicils of Miss Jessie Fish, late of Dunedin. The will was executed in December, 1929, and the codicils in 1932 and 1933 respectively. The defendants were Kate Edith Lilly (Dunedin)■ Jessie Constance Mayer (Wellington), Ruby Lillian Clarkson (Auckland), Minnie Louisa Morten (Auckland), Mildred Grace Madden (Wanganui), Amy Grut (Bulls), Frederick Fish (Auckland), in the first part, and Irene Stevens (Christchurch), Alice Beatrice Stevens (Dunedin), Helen Kate Wratt (Christchurch), Ernest Arthur Eva (Sydney), Florence Jessie Liddon (Colyton, England) and Louise Alice Shackleford (Dunedin) in the second part. Mr W. Taylor appeared for the plaintiffs, Mr A. N. Haggitt for the defendants of the first part, Mr Hewat (Invercartrill) for Irene Stevens, and Mr J. M. Paterson for the other defendants of the second part. In his judgment his Honor said that no person was concerned to allege the invalidity of the will. The contest was whether probate should be granted of the first codicil, the defendants pleading that the deceased at the time of execution of the same was not of sound mind, memory and understanding, owing to senility and other infirmities affecting her capacity, and that at the time of execution she did not know and approve of the contents thereof or understand the meaning and effect of the codicil. .._.

The testatrix died on April 16, 1934, being then aged 88 years. Brothers and sisters had died in 1900, 1916, 1920 and 1927. Of one family of a brother of the deceased there were seven nieces and nephews, of another family five nieces and nephews, and of a third family one nephew. H. C. Stevens was a nephew, and from the age of 10 until 25 he lived off and on with the testatrix and, during her lifetime, had assistance from his aunt. Some 22 or 23 years before, the testatrix had advanced H. C. Stevens the sum of £2OOO on the security of a farm and had at intervals foregone interest when he was unsuccessful. From about 1923 she bad an intention of cutting him out of her will and in 1927 she informed him that she had taken him out of the will and had forgiven him the debt. In 1930 lie left his farm and was in debt and his health was not good.

" The will of the testatrix in force in 1923 provided for equal division of the residue amongst nephews and nieces. Some time after 1923 the testatrix informed her solicitor, Mr Collier, that she was thinkinc of taking H. C. Stevens out of the residuary bequest because she had had to write off the debt which he owed her. Tn 1927 she gave instructions for a codicil giving effect to this, which was duly executed, but this codicil made no change in the appointment of H. C. Stevens as executor. In 1929 a fresh will was executed which substantially followed the previous provision and continuing the omission of H. C. Stevens from a share in the residue.

" The codicil of November 25, 1932, was, according to the account given by H. C. Stevens, made in the following circumstances. He came to Dunedin with the express purpose of seeing his aunt and went first to consult Mr Clowes, who advised getting the report of a doctor. He called upon his aunt and asked, that being the purpose of his visit although he was accustomed to call, that she should restore his wife to her will in his place, and the testatrix told him to instruct Mr Collier to draw up the necessary documents, and, on the solicitation of the wife of H. C. Stevens, agreed to make a monthly allowance to her, if funds permitted. Stevens told Air Collier that a codicil was to be drawn giving his wife a share in residue, and that she was to have an allowance. Sir Collier confirmed this. The proposed provision was the subject of protest by Mrs Clarkson, who held a strong opinion that H. C. Stevens had had more than enough. When Mr Collier again called, he was informed by Mrs Clarkson that she did not think her aunt would sign, and, when he saw the testatrix, she told him she would not sign but was thinking over whether she would not put H. C. Stevens in the will. She signed an order for payment of a small allowance to Mrs Stevens. H. C. Stevens later heard that the codicil was not completed, and he again saw his aunt and, so he says, induced her to agree to put his wife back in the will. The codicil was, under arrangements to which H. C. Stevens was a party, taken up by Miss Tibbs to the testatrix and signed. The second codicil was made on Mr Collier's suggestion and was regarded as a merely formal matter. " The burden of proving that at the dates of the codicils the testatrix was capable rests on those propounding the codicils.

"It becomes," the judgment continues, "to refer to the evidence. The testatrix broke her leg in 1929 and was thought to have had some manner of stroke. Her articulation was difficult and not easily understood by those who were strangers, and she was. upset by strangers and emotionally disturbed at the coming and going of friends. She could not do anything for herself, and had to be fed. In 1931 a niece, Mrs Clarkson, came down to be her housekeeper, a nurse being still retained. In 1932 the testatrix appeared to an impartial observer as unquestionably quite senile. Mr Collier had been her solicitor for many years and attended to her business. Mrs Collier, visited as a friend, Miss Violet Tibbs was a regula_r visitor, Miss Ann Richards an occasional visitor. Dr Borrie became the medical attendant of the testatrix a short time before the first codicil was signed, although he had known the testatrix otherwise for some years. Miss Hawkes was the nurse in attendance at the time the first codicil .was signed, and Dean Cruickshank was a visitor from about May, 1932. Dr Borrie, Miss Hawkes and Dean Cruickshank have no interest in the litigation, and gave evidence which I am satisfied is reliable. Mr Collier and his wife gave evidence with honesty of purpose, but I think Mr Collier's attention was directed primarily to whether the testatrix knew what she was doing and not so much to the question whether the testatrix had disposing mind and memory. He was the trusted solicitor of the testatrix, and allowance must be made for readiness to assent to his advice. Allowing, however, for that, it may be that the testatrix retained sufficient judgment at the time of the execution of the second codicil to know in a general way what she was doing, if matters were properly brought to her attention.

It is clear from their Lordship's exposition in Hanvood v. Baker (3 Moo. P.O. 282) that the real question is not simply whether a testatrix knew what she was doing but did she have a disposing mind and memory. " In this case, was the testatrix capable, with her mind unrefreshed, as it was unrefreshed, of recollect]'nc;, even in a general way, the terms of the will In which the codicil referred, or of recollecting if she had made a will. The execution of the codicil was obtained by the instrumentality of H. C. Stevens, and it nominally benefited his wife but really benefited both. Procured and executed in the circumstances disclosed in the evidence, it attracts the suspicion of the court. "Here the idea of a provision for H. C. Stevens or for his wife, which is only provision in another form for H. C. Stevens, did not originate with the testatrix, and. indeed, was contrary to her former fixed intetion, as, after being given a share with other nephews and nieces, he was deliberately taken out of the will. What instruction Mr Collier obtained did not represent her mine" when he last saw r the testatrix, and when H. C. Stevens was not recently in her company and Mr Collier, then, regarded the matter as at an end. The subsequent consent of the testatrix, if there was consent, was induced by H. C. Stevens, and the execution of the codicil was procured through his instrumentality. To secure provision for his family in the shape of a payment to hi s wife was the purpose of both visits.

It seems a 9 If before the second meeting with the testatrix Stevens had, assuming his aunt's consent, arranged that Miss Tibbs should take the codicil up for execution. The codicil was not read over to the testatrix. Miss Tibbs only in a vague way outlined the terms of the codicil and used language which, it might be thought, did not unmistakably indicate that a testamentary instrument was in fact then and there to be executed but rather some preliminary docunient. But. be that as it may, it is quite clear that she said a paper was to be signed to put Mrs Stevens into the will, and that, in evidence, she described as an explanation of the contents of the codicil. In answer to a question from the court she referred to the testatrix appearing to read the codicil, but there is no doubt from tjje way the question was answered that the witness had no conviction herself that the testatrix had in fact read the document and that it was not read. The explanation of the contents by Miss Tibbs did not accurately define the interest taken, which may have been from something quite small to a whole interest, and could not be said really to have made its contents clear to a person of the testatrix's age and apprehension, if indeed she possessed testamentary power. If regard is had to the testatrix's former deliberate intention, her failure to sign when Mr Collier brought the codicil, her enfeebled memory and her condition, which was, as Dean Cruickshank described it, unquestionably quite senile, and, as another described it, childish, this evidence is quite insufficient judicially to satisfy the conscience of the court that the testatrix did in fact really know and approve of the contents of the codicil. It is not " very clear proof of volition and capacity 'as well as of a knowledge by the testatrix of the contents of the instrument." H. C. Stevens having an adverse report from Dr Borrie, did not seek confirmation or otherwise of it* por did he disclose the unfavourable report to Mr Collier. , 1 _ i "The evidence, however, goes further and affirmatively proves a lack of dis-nc-ginc mind and memory. The question is not simply did the testatrix know that she was giving a share in her estate to the wife of H. C. Stevejis or putting her into her will, but, had the testatrix power to comprehend the nature of the claims of those affected, particularly the nature of the claim of him (or his wife) whose share was increased at the expense of others. Was her memory such that she was capable of understanding his and other claims upon her bounty? The testatrix had, after long deliberation, excluded H. C. Stevens from a share in residue because she had forgiven him a debt of over £2OOO, and H. C. Stevens had in fact had an advancement of between £2OOO and £3OOO. But if the memory of the testatrix had so far failed that she was unaware of these circumstances or of similar circumstances to such an extent that when making the codicil or giving instructions for it she was incapable of recollecting them, then I think she was not really capable of making a comparison or of weighing claims upon her bounty and of comprehending the respective claims of the persons preferred and of those affected. She had no power of recollection herself to check any illusory idea that she had not made very substantial gifts to H. C. Stevens. There is unanimity amongst all credible witnesses that the testatrix's memory' at all relevant times was bad. Mr and Mrs Collier speak of it being unreliable. Miss Tibbs speaks of her memory being, as far as she knew, good up to the time of her death, but I think from the evidence (riven by others that this witness, if she had knowledge, obviously had an impression which was entirely ujljpng. H. C. Stevens speaks of the testatrix's memory as being quite good, and of noticing only one instance of its unreliability, but I am unable to accept this evidence as giving a correct impression, and I conclude, from the instances given and from the impressions formed by reliable witnesses, that the memory of the testatrix was noticeably unreliable even to the casual observer. I think it had gone beyond a stage at which the testatrix could be said to have merely a weakened or enfeebled memory or to be suffering merely from forgetfulness or to be mistaken, while still retaining testamentary capacity. 1 Dean Cruickshank saw her first in May, 1932. and described her condition in words which have been quoted. While another witness, Miss Hawkes, who saw the testatrix during a period of three weeks which included the time when the second codicil was signed, said that at the time her physical condition was very weak and she could not do anything for herself, and described her as being very childish; she was not mentally alert and her memory was bad and she did not remember things from day to day; she was forgetful in the afternoon of events of the morning, and the next day of events of the day before and appeared incapable of business. "The evidence of Mrs Clarksou is to the same effect, while Dr Borrie, as a result of his examination, concluded that she had practically no memory of recent events and was incapable of business, although able to answer some questions rationally. I think it is clear that even after a day she must have had, if any, only the vag-uest recollection of what had occurred the day before. As to more distant- events, I think her memory had failed too much to enable her intelligently to consider the nature of the claims of those she was preferring, for she would have no real memory of circumstanees which constituted their claims or otherwise upon her, and she could not therefore discriminate or make a comparison or intelligently weigh the claims upon lier. She was unaware, in fact, of the gift of £2OOO and other benefits conferred on 11. C. Stevens, and incapable by herself of recollecting them. Her belief in the non-existence of thig circumstance is detailed by Mrs Clarksou and must be ascribed to inability to recollect. It is in accord with Dr Borrie's opinion arrived at when investigating the condition of the testatrix for the purpose of advising 11. C Stevens. Some of those who gave evidence did not specially examine the testatrix. This medical witness did, for the very purpose of arriving at an opinion of her testamentary capacity and he was led, as a result of his examination, to the opinion that the testatrix had really no memory for past events nor for recent events, and that she was really incapable of business. " I think this is quite consistent with the recognition spoken of by others. Mr Collier, while agreeing as to the unreliability of the memory of the testatrix, seems to have considered that her memory had not been quite so enfeebled, but at the time he did not explicitly direct his mind to her memory but rather to her judgment, and he answers mainly upon the supposition that matters are recalled to her memory. I think that the condition of the testatrix, having regard to her memory, rendered it clear that she was not in any real sense capable of business as distinct from merely assenting to advice. Dean Cruickshank and Dr Borrie formed substantially the same opinion, and their observations relate more exclusively to the relevant period of time. I think reliance is to be placed on the evidence of Mrs Clarksou when she speaks of matters of fact, although she was interested and had a strong opinion that If. C. Stevens was pressing for an undue share. The will was procured by H. C. Stevens. The testatrix appears, when she did not sign on Mr Collier's second visit, then to have been considering a provision which would indicate that she had forgotten or had not appreciated the obvious reasons why H. C. Stevens wished provision to be made in form for his wife. Her refusal to sign was doubtless the result of Mrs Clarkson's protest, as her apparent willingness was a result of H. C. Stevens's application, although she might well have desired further to assist a nephew whom she had so greatly helped in the past. The 'testatrix did not suggest the terms of the codicil, nor, when Stevens again called to induce (he testatrix to sign it, nor when Miss Tibbs took the codicil to the testatrix, does it appear that the e<uiditon of her estate, the stale of the family, or the circumstances relevant to the claims of those preferred and of the others affected, were brought to her recollection, and she was incapable herself recollecting. "It follows that the first codicil is pronounced against. The mind and memory of the testatrix were no better when the second codicil was signed and the contents of the old will and the first codicil and other matters which would not be present to her enfeebled recollection and could not be brought to her recollection were not before her. The confirmation contained in the second codicil will accordingly not avail to confirm the first codicil. " I pronounce for the will dated December 17. 1929, and against the first and second codicils. The costs of all parties represented at the '.earing, taxed as between solicitor and client, will be paid out of the residue."