LITIGATION OVER WILLS

Otago Daily Times, Issue 23004, 6 October 1936, Page 10

LITIGATION OVER WILLS

SPINSTER'S VALUABLE ESTATE REVOCATION OF PROBATE SOUGHT CAPACITY OF TESTATRIX QUESTIONED (Per United Press Association) CHRISTCHURCH, Oct. 5. Hearing of an application to have probate of a will allegedly made by Elizabeth Smith, spinster, revoked, and the will declared null and void, was commenced before Mr Justice Northcroft in the Supreme Court today. The will was sworn for' the purposes of probate at £77,000. but at the time it was drawn up the estate was estimated at between £50,000 and £60,000. The plaintiffs were Olive Judge and Ivy Cookson, both of Christchurch, and -he defendant was the Guardian Trust and Executors Company of New Zealand, Ltd. It was claimed by the plaintiffs that at the time the alleged will, dated June 8, 1934, purported to have been executed, Elizabeth Smith was not of sound mind, memory, and understanding. . On June 8, 1934, the statement continued, Elizabeth Smith was 80 years old or thereabouts, and remained until the day of her death suffering from senile dementia. With the exceptioi of an admission that probate of the will was granted to the defendant company on July 19, 1935, the statement of defence was a general denial of the allegations made in the statement of claim. , " . It was agreed that the case for the defence should be taken first, Mr H. F. O'Leary, K.C., contending that the onus was on the defendant company to uphold the will Dr Haslam, opening the case for the defendant company, said that Miss Smith's testamentary capacity on June 8, 1934, was the vital point She had inherited in 1922 a large share of her brother's estate, for which the Guardian Trust and Executors' Company was trustee. At the beginning of 1933 the manager of the company in Christchurch became concerned because Miss Smith had been approached by representatives of the Investment Executive Trust of New Zealand and had been induced by them to dispose of her shares in the South British Insurance Company and the New- Zealand Insurance Company to the value of £II,OOO, and to inves' the money in the Investment Executive Trust. It was clear that Miss Smith had been prevailed on by salesmen against her better judgment. Later she invested in gold-mining shares and a flax company. She lost between £6OOO and £7OOO in 12 months. After some time, Dr Haslam said, the Guardian Trust obtained an order under the Aged and Infirm Persons Act to which Miss Smith agreed. After discussion with Mr Justice Ostler in Chambers, the Guardian Trust proceeded to recover some of the investments. The manager of the trust suggested to Miss Smith that she should make a will, and in March, 1934, she agreed to do so. It was suggested to her that she should leave the residue of her estate, after specific bequests, to relatives, but she said that as she had already provided for them the residue should go to charity. She said she was against leaving her relatives too much money. Miss Smith, Dr Haslam continued, had lived in a very ascetic way She had been seen in the streets picking up pieces of wood and pacer and fruit which fell from stalls. This was probably eccentricity, and was no evidence of incapacity Evidence was given by Charles S. Thomas, barrister and solicitor, of conversations with Miss Smith and the taking out of a protection order, the purchase and sale of shares, and the drawing of her will. He was fully satisfied that she knew what she' was doing and knew the full purport of the will she executed. Other evidence was given by Claude Wilkins, law clerk, about conversations when the will was being prepared and when it was signed. - The Rev. Frederick Norman Taylor, vicar of St. Luke's, said that Miss Smith had lived in a parsimonious fashion and had dressed poorly. Her mental condition always' seemed to him to be normal and her memory was good. Duncan M'Kenzie, a detective, said he questioned Miss Smith about a man who had obtained money from her for shares, and who was subsequently charged in court with obtaining £125 from her by false pretences. Miss Smith's statement and her evidence in court had been clearly and coherently given. • The hearing was adjourned until to-morrow. COURT OF APPEAL ACTION CODICILS CONTESTED (Per United Press Association) WELLINGTON, Oct. 5. The case of Clemow and others v. the Guardian Trust and others entered its third day to-day. Mr T. E. Henry, counsel for the first-named respondents, submitted that it was clear from all the evidence that the testator. James Joseph Burt Veale, was not generally insane before February of 1935 The evidence given by the two appellants themselves showed that the testator was sane at least on one very important item namely, business ability In counsel's submission, it followed that it was impossible to find the testator generally insane if he were sane on a topic of this nature. After further addresses by counsel, decision was reserved.