PROBATED WILL UPHELD

Otago Daily Times, Issue 23435, 25 February 1938, Page 5

PROBATED WILL UPHELD

STEP-DAUGHTER’S APPLICATION ' FAILS RESERVED JUDGMENT IN SUPREME COURT A will case of unusual interest was concluded with the delivery yesterday o:C the reserved judgment by ,his Honor Mr Justice Kennedy in the proceedings in which Elizabeth Owens brought an action against various defendants with respect to the will of her step-father, William Journeaux, of Waikouaiti. His Honor’s judgment was given in favour of the probated will, which named the second defendant, Mary McLean, as the principal beneficiary. His Honor, in his judgment, said;— William Journeaux died on the 24th day of'October, 1936, having m his lifetime executed three documents, which were by various parties claimed to constitute his last will and testament. These documents are respectively dated July 22, 1920, November 30, 1925, and August 20, 1935. The plaintiff asks that the first will be pronounced for and each subsequent will be pronounced against. The defendant Mary McLean asks that the second will be pronounced for and the third pronounced against, while the defendant Honoria Agnes White was interested to maintain that the will of August 20. 1935, was valid. William Journeaux at his death was a very old man. He came, according to his own statements, from the Jersey Islands. The evidence deals with his history from before his marriage, when he was in Central Otago near Gimmerburn. In 1908 he married a widow with children. From Gimmerburn they went to reside in the Catlins district, which they left in 1920, to retire to Waikouaiti. where he lived until his death. He lived with his wife from the marriage until her death in Waikouaiti in 1925. While at the Catlins he received as the proceeds of the sale of a farm a sum exceeding £3OOO. This sum was invested by his solicitor and a small amount retained for the purpose of the purchase of a home at Waikouaiti, Mr Walter was his solicitor. He deposed to a number of transactions which he carried out under the instructions of the testator. Eventually on Jus 22, 1920, he was instructed by ihe testator and also by the testator’s wife, to Make wills. The testator s will so made provided for the whole of his estate going to his wife, but, if she predeceased him, his estate was to go to a Mrs O’Dowd, a daughter of his wife by her first marriage, who had kept close to his wife. The instructions for this will and the condition of the testator at the time were clearly deposed to by Mr Walter, and from that evidence it is established that at the time this will was made the testator had the full possession of his mental powers and had beyond question testamentary capacity. His condition subsequent to this is reported upon by other witnesses, but so clear is the testimony that there is no need in this judgment further to summarise it. I pass to consider the circumstances in which the second document claimed to be a will was executed. It is convenient at this point to discuss the family circumstances of the testator at the time the second will was made and the observations of various witnesses as to the testator's condition. The testator was very much dependent upon his wife for personal attention. They lived a retired life at Waikouaiti, where were resident some who had known them in their earlier life at Gimmerburn. It was customary in the evenings for the husband and wife to play euchre, either at their own home or at the home of one of a small circle of friends. This continued up to the wife’s death, and was resumed in the testator’s home, but not outside after the death of Mr? Journeaux. The testator did not express himself fluently. He was no’ easy to understand, and even during his wife's time he had a habit of starting a reply and then leaving it to his wife to finish. He was, however, always consulted on any matter of importance. Until after his wife s death no one sepecially noticed or remarked on his condition, except one witness, who thought him incapable of business as from about 1921. Mr Walter described business originating with the testator prior to his wife s death, the instructions for the stamp accounts and their completion. On the wife’s death Mrs O'Dowd came to live with the testator, and while nothing was proved to have been definitely arranged, there was at least an expectation that she would continue to keep the testator’s house. Instructions were given by the testator to pay into Mrs O’Dowd’s Post Office account the amount 'of her mother’s estate. This amounted to about £3OO, and had been left by the testator’s wife to himself. Mrs O’Dowd was engaged to be married She -poke of offers of marriage from the testator, and finally believing herself insulted, she left the house. The incident recorded when first reported by , this witness proved not to have the unpleasant features which might be gathered from Mrs ’ O’Dowd’s, evidence Whatever be the real fact, the testator exhibited disappointment at her so leaving but does not seem to have discussed with any person the leaving. Mrs O’Dowd was with the Mstator from June to about October. 1925. A Miss Mary McLean was then secured to act. as housekeeper for the testator. She assumed that duty about October, 1925. She continued to ac. as such until 1933. She said that the testator often said that whoever looked after him and looked after him well would have his estate. She became sufficiently interested to spend some of her own moneys on the improvement of the cottage and in the end came out without any savings. At first she did not stay at night, but latterly stayed at night if the testator was ill or if he really required company. On November 26. a letter was sent to Mr Walter intimating that Mrs O’Dowd had left him about six weeks befpre and had not stayed to look after him The letter continued, “ I am altering my will. I wish to leave everything to Miss Mary McLean of Waikouaiti. This letter, although bearing testators name at the end, does not appear to have been signed by him. and no evidence was given as to who signed this letter other than that afforded by comparing it with other writings. Mr Wa.ter called at Waikouaiti. produced a will and after discussion it was executed in due form. There is. in my ipinion. no doubt upon the evidence 'hat when this will was executed the 'estator had full testamentary capacity The will was signed by the testator in his own name. Subsequent to its cxecu•ion the testator reduced Miss McLean s wages. His physical nnwers had shown some d'minuotion. Ho was still play ind euchre, and friends were nlaym° with him without any really noticeable incapacity No peculiarity is real’v disclosed' at this time Mr Walter noticed none and he had had from past experience opportunity reallv of judging Ho speaks of noting that the testator could not get about as freely as before Mr Willcock has spoken about the night preceding the morning after the death of the wife of the testator What is deposed to does not in the case of an elderly man really affect the general trend of testimony as to the testators capacity. Upon thq whole without again more fully reciting the evidence. I may say that the general result is to show the testator’s possession of testamentary capacity at the time this will was completed I the more readily refrain from settins out the evdence in detail because those in favour of the later will contend for capacity, and the plaintiff who was concerned with the will of 1920 was constrained to admit the strength of the evidence and the propriety of the view that there was testamentary capacity It is convenient at once to say that an opinion as to the testator’s capacity since 1921 expressed by a travelling storekeeper was, in my opinion, wrong, and little reliance may be placed upon this opinion as to a later time when long before the witness held this erroneous opinion. I pass now to consider the last will. No person is considered capable of making a valid will unless he be of “sound mind, memory, and understanding.” By this phrase it is said emphasis is laid upon two functions of the mind, which must be sound m

order to create a capacity for making a will; there must ho a memory to recall the several persons who may be fitting objects of the testator’s bounty, and an understanding to comprehend their relationship to himself and their claims upon him. In Banks v. Goodfellow (1870), L.B. 5, 0.8. 549, at page 565. Cockburn, C. J., said. “It is obvious in either case that to the due exercise of a power this involving moral responsibility the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the Act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect: and with a view to the latter object, that np disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties —that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound would not have been made.” Erskine J. in Harwood v. Baker, 1840, 3 Moor P.C. at page 290 said, “in order to constitute a sound disposing mind a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent ot his property and the nature of the claims of others, whom, by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one. In Combe’s case, Moore (K. 8.) 75J, it was said that sane memory for the making of a will is not at all times when the party can say “Yea ’ or “ No ” or has life in him nor when he can in some things answer with sense; but he ought to have judgment to discern and to be of perfect memory otherwise his will is void. While in Don v. Vancleve, 2 Southard, at page 660, cited with approval by Cockburn C J in Banks v. Goodfellow it was said; “By the terms ‘a sound disposing mind and memory ’ it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise very few could make testaments at all; neither has it been understood that be must possess them in as great a degree as he may formerly have done. fqr even this would disable most men in the decline of life. The mind may have become in some degree enfeebled: and yet there may be enough left clearly to discern and discreetly to judge, of all those things and all those circumstances, which enter into the nature of a rational, fair, and lust testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound disposing mind ana memory.” In Kindleside v Harrison, 2 Phil., Keel, at page 464, Sir John Nicholl. speaking of the age of 86 to 88, said: “This raises some doubt ot capacity, but only so far as to excite the vigilance of the court; for the law allows a person at any age to make a will provided he retains the disposing faculties of his mind. Age is an uncertain criterion of mental powers, for those powers are often retained by persons even above that age in a greater degree of perfection than they are by others 20 years less advanced in life who may yet have no other apparent infirmities than those of age. A testator then must possess a memory sufficiently active to recall (a) the nature and extent of his property, (b) the persons who have claims upon his bounty, and (c) a judgment and will sufficiently free from the influence of morbid ideas or external control to determine the relative strength of those claims. This being the !aw it remains to ascertain the faci.s and to apply the law thereto. The witnesses as to capacity fall into groups. First, there are those appointed with the alleged testamentary sets, the solicitors who prepared the wills, and in the case of the last document the bank manager who was a special witness. In addition there is the evidence of the doctor who attended the deceased and who was not definitely in either camp. On the ptner hand there is the evidence of claimants under the earlier wills, Mrs Owens and Miss McLean, and a number of other witnesses more or less acquainted with them with marked sympathy for one of the claimants and with an idea that the testator had acted unfairly by one of them, inis must be remembered in considering the weight to be attached to their evidence The age of the testator alone is suen as to lead to caution Physically he had failed somewhat by 1925 and the declension in physical power during the next 10 years was considerable but more noticeable during the last five years of his life. For seveial years he had a non-returnable hernia and was described by Dr Howden, who attended him for that disability in June, 1925. July. 1928. January, 1931, and March, 1935, as being seriously ill for several years. He was physically an old man. Prior to 1933 he had become emaciated and shrunken and could get about with great difficulty with both hands upon the wall his legs being particularly weak. His speech was at no time clear. In lazr) and subsequently he was not readily understood by strangers. It was always hard to get him to converse He was abrupt, and in his wife s time got her to speak for him. and later seemed, when he could, to have relied upon some person speaking for him In the end he was very deaf, but • think until 1935 he could, without undue difficulty, hear the full voice. In April, 1935, Mrs Owens, who was known to him. conducted some con versation with him by writing but upon that occasion she seems to havy had more than usual difficulty. His memory would be expected to deteri orate and to be weaker than in earlier life. This opinion vyas expressed, bu’ no very striking illustrations wen given such as are usually available n cases of debilitated memory in ole people. There is some genera l evidence that he had forgotten or was unaware of early times. Mr Willcock gave an example of his forgetting a reference to piles for a sunporch. and mentioned his dissatisfaction as to price, but neither incident is very cleat or conclusive, Upon the whole I conclude that his memory had been weakened but was still remarkably oreserved for his age.

Running through his conversation with friends subsequent to his wife s death was his intention of marrying. It appeared from what he said explicitly to Miss McLean that he had some idea of securing future comfort by a marriage with some person who would look after him. This is dear from the evidence of Mrs Owens Miss McLean, and other witnesses and it continued in his latest years It was undoubtedly a great interest Early in Miss McLean’s time he was endeavouring to secure her continued attention by intimations of his testamentarv intentions. He had previously given to Mrs Owens her mother’s estate when she had come to stay with him The second will provided for the estate going to Miss McLean, the housekeeper. and his final will provided for his estate going to the woman who was then his housekeeper and had been so for some two years. In Miss McLean’s lime he was speaking of marriage, assuming and sneaking of engagement. I think it was merely expressive ot his desire and was not delusive in any way Neither do I think the reference once to f the “ big girl sitting upon my knee. the lazy girl tapping upon the window and to women being, as he said, “after him,” was delusive, but merely foolish talk to a person whom he knew well and whom he wished to marry. No one but Miss McLean speaks as to this. The occasion spoken of by Miss McLean when there was some disturbance through a search for escaped mental patients when he said that he would “ rather give them a meal,” displayed a sympathetic interest, but his conduct on that occasion has, I think, no special significance. I come to the final scene when it was arranged that Miss McLean, who was confined to bed with abscessed ears, should be relieved. She was not prepared for this She noticed the friendliness of the testator and Mrs White, and upon mention of marriage she pointed out its impossibility, and there was a scene, in which the testator told Miss McLean that she could take away her rubbish as soon as she liked. He adhered to Mrs White, notwithstanding her

daughter’s statement and the statement of Miss McLean that she was married. At that time Miss McLean herself was ill and needing attention, and the old man seems to have proceeded at once to secure himself. He had obviously needed someone to stay with him at nights and while there may have been no complaints to Miss McLean the new arrangement better secured him company at nights. I think it really appeared that there was some heat and unpleasantness, repeated again when Miss McLean left. He is reported as avoiding a particular Anglican Churchman. There is no evidence that he himself turned from old friends, but there is evidence that their calls were discouraged by Mrs White. He received, according to the evidence, in later months, calls from another church from that in which he had been interested earlier. His condition in April, 1936, was described by Archdeacon Button. Ho had by this date failed very greatly. I think this evidence gives a reliable account of what Archdeacon Button found in Easter, 1936. Miss McLean described the testator as being “ mean and close-fisted.” The evidence as to his acts goes no further I think, than to show that he was careful, but it is necessary to consider the evidence on this point, as it was said that his outlook changed and he became extravagant. a change that is explained only bv inferring great mental declension. Two instances are quoted. The first was a purchase from a visiting salesman of a motor car for £275 This was done in the hope, which proved extravagant, that Miss McLean could learn to drive and take him about, and some of the talk relied on. I think, must have been to reassure her. He had previously been taken out in a neighbour's car—for example, when making necessary visits to the post office. In the end the car was neglected, left outside, and somewhat damaged. This proved undoubtedly bad business. There are also very low offers to sell mentioned. It was. however, ultimately sold for £75

The second matter mentioned is the purchase of a gramophone. This was in 1928. and may not have been good business. Possibly, about that time many gramophones were purchased at prices which now seem absurdly high On the other had. throughout the testator seems to have lived more or less upon his income and to have watched his expenditure. He left an estate which was but little reduced from that with which he went to Waikouaiti. As late as 1934, he was considering costs, as his trouble with Mr Willcock indicated, and he was counting his expenditure when in 1935 he discussed with Mr Rolfe his expenses and the need for exemption because he could not pay the unemployment tax. I think that the two instances given may be regarded as not good business, but they do not point when taken with the other evidence to any marked change in the outlook of the testator. Certainly I do not think they justify the conclusion that he. a close-fisted man. had become an extravagant 'spender.

At some period not very definitely fixed but certainly in Miss McLean’s time and before 1929, the testator ceased to sign his name and made his mark. The reason for this is h matter of opinion. Mr Rolfe surmised that testator’s difficulty was due to his rheumatic disability, while Miss McLean said he could hold a knife and fork all right and any further difficulty was due to mental declension.

I come now to deal with other details of the evidence. Mr Rolfe speaks of seeing the testator on the following occasions, namely:—March 21, 1933; May 23, 1933; November 28, 1933; November 27, 1934; August 20, 1935; and October, 1935. The first call was with regard to the conversion of inscribed stock. He received instructions to convert, and a tin with his stock certificates and other records were produced. Miss McLean doubted if he understood. Mr Rolfe, after speaking of an explanation in simple terms, said that testator had no difficulty in the end in grasping his explanation. Instructions to collect the sum of £3 12s were given. Mr Rolfe described him as being quite alert mentally, and said, “He appreciated the significance of anything I said to him.” He was with the testator about half an hour;

The next interview, on May 23, 1933, was about an unemployment declaration which the testator asked Mr Rolfe to complete. The solicitor had the information and needed no explanation. The form was signed by mark. Mr Griffiths and Miss McLean had difficulty in explaining, and suggested that Mr Rolfe be called in. No mention of this prior difficulty seems to have been made to Mr Rolfe. On October 10, 1933 Mr Rolfe received a message to call, and upon calling on the testator received instructions to write to Mr Walter for his will. In November, 1933, Mr Rolfe was to be in the vicinity of the testator’s home, and called with the bank manager, left the will, and took a receipt by mark. On November 27, 1934, Mr Rolfe had a message to go to the testator, and an agreement was produced signed by the man who had purchased the motor car. and instructions were given to recover the balance. The next visit was in May 1935. in connection with an unemployment return which Mr Rolfe. who had the information, duly completed At this interview Mr Rolfe made certain inquiries which the testator had no reason to anticipate. Mr Rolfe said “ I asked him what he had done with the will which I had handed to him. He stated that he had burnt it He had mentioned that he had no relatives That was on a previous occasion i do not remember when. I pointed out to him that having no will in existence and no relatives his property would go to the State. I suggested to him that he might care to leave a will leaving his estate to charity I suggested the Salvation Army or some institution He said, No.’ He said probably he would make a will later on.’ This interview was after Mrs Owens s visit to Waikouaiti. which was stated to be Easter. 1935. In August. 1935 a message was- received to call Mr Rolfe called Mr Rolfe said the testator then told him that he wished to leave a will leaving everything to Mrs White, as she had been very good to him He went back to his office at Waikouaiti. drew the will, and returned with Mr d e Latour Mr Rolfe read the will

He then stated its substance, and asked the testator if he understood it. He ignored the question and reached for the pen. and the question, being repeated, he answered, “Yes.” Mr de Latour. one of the witnesses, said that Mr Rolfe explained the will and then asked did the testator understand. The testator did not reply but reached for the pen. Mr Rolfe repeated the question did he understand and received an affirmative reply, and Mr Rolfe handed him the pen, and the will was executed. At this time Mr Rolfe describes the testator as hearing if the speaker used the full voice. The instruction was in the simplest terms, and testator did not even have to give the name of Mrs White because the solicitors had that information. The final call by Mr Rolfe upon the testator was in October. 1935. when the testator stated that he could not pay the unemployment tax; he had some accounts to pay. also his housekeeper. and he further said his income had been reduced owing to the conversion.

Dr Howden received answers to his medical inquiry which were sufficient. He thought there was sufficient mental capacity in 1925. He said, “ His mentality was a bit slow: he always seemed a little bit hard to understand. For understanding his income and such things I should think he was all right. He was deaf to a certain extent. 1 could always make him hear.” The testator’s mental condition during the last few times he saw him was very bad. He saw him in January. July, and October. 1936. He said that his memory was not good, and there was a mental failing some time before his death.

Mrs White was not called as a witness. It was said -by her counsel she was in too hysterical condition to be called, and this was confirmed by counsel for the plaintiff, who had her medically examined

I pass now to consider the other, evidence. The testimony of Mr Griffiths has already been recited. He had no precise recollection as to whether the difficulty which he had on a call on the testator was in respect of the registration levy or the emergency income charge. He said that he could make no headway with the testator. When asking about the lew apparently the levy was overdue or he had not paid the emergency charge. He said that he could not understand the testator, who spoke in a guttural voice. Ido not think that this carries the matter further than slowness or dullness in appreciating a new matter by a person who was out of touch with current affairs. Patrick McCarthy said he found the testator unable to express just what he wanted. He ceased to call in 1934, and before that for a year or two he could not make the testator understand him very well. He regarded him as a stupid old man unfit to do any buying from 1921 and incapable of transacting the ordinary affairs of life. This opinion, going back to 1921, was, if held at that time, quite erroneous. Mr Palmer saw him about once a fortnight from 1929 until about six months after Mrs White came. Speaking of that period he said he played cards at first, but his ability to play became worse. He read with a magnifying glass, but later he did not seem able to read. He was hard to understand. He formed the opinion that the testator did not seem to be capable of looking after his business affairs. He could see that when he spoke to testator testator could not understand him. Mr Hurndell found him changing in mentality in 1929, talking about women as he had always done, and after Mrs White came talking about marrying her. He did not understand conversation about old times. Mr Willcock said he found difficulty in making him understand things about the time Mrs White arrived. He spoke of forgetfulness about the piles, and when he proposed a written agreement in 1934 in connection with the erection of the sunporch replying that he had never done him out of anything. Mrs Willcock said that she found him not able to sustain an ordinary conversation and she ceased to call in 1934. Mrs Kirkwood formed an opinion contrary to the above. There remains to consider the evidence of Mrs Owens and Miss McLean. The evidence of Mrs Owens- as to the incident in 1925 gave atj. first an impression which when the matter had beeen examined further I was unable to retain. The evidence of her visit in 1927 does not carry the matter much further, while in April. 1935, when she first saw the testator, he was dull and somewhat in the condition spoken of by Mrs Kirkwood. Later she described her communication by writing with the testator who was at this time appearing to have some difficulty with the ear, and she recorded a quarrel in which Mrs White intervened. I think at this time there must have been some special difficulty in hearing and a consequent apparent dullness and a failure to appreciate what was the reason for the quarrel.

Miss McLean’s evidence carries the matter up to September 23, 1933, when she left. He early informed her that whoever looked after him well would get his property. He said as long as she stayed she would get all his property. She speaks of the testator gradually ceasing to read, spending much time in bed or sitting in front of the fire. She said, “ His mental condition went down slowly at first and then more quickly toward the end of my stay. He was better some days than others.”

I have already dwelt with certain Instances which she mentioned, the time of which was not very definitely fixed. She spoke also of the old man screeching on several occasions. His voice may have been of that type. No one else spoke of this, and the question was not put to one witness at whom Miss McLean said he screeched, but I think that some display of temper and frustration is to be accepted, but that it was not so displayed or noticed by the others not so closely associated with the testator as was Miss McLean. His attitude to her did not change as long as she did the work all right but changed when she was ill. The fair result of the evidence is that there had been very considerable physical declension and the mental powers were not retained in their former fullness but that the facts deposed to by Mr Rolfe and by Mr de Latour do, I think, on the whole, give a faithful picture of the deceased’s mental condition at the relative times The business with

Mr Willcock shows a certain shrewdness still retained. The unexpected questions of Mr Rolfe as to the will are all sensibly answered and in a way which shows memory and the maintenance of judgment. If I have regard to the instances and facts spoken of by witnesses rather than to their opinions, then I am disposed to find a memory which had become, somewhat debilitated, but was still remarkably good for his age, capable of recollecting his estate, of remembering those with claims upon his bounty, and of judging with respect to them The whole of his actions and testamentary dispositions from the death of his wife to the end have a certain unity and. while one may be inclined to think that he might have remembered others, it seems quite clear that he, in 1935. was disappointed with Mrs Owens, and the quarrel with Miss McLean would naturally influence his final judgment. The 1935 will was made after a longer period following the new service. In the result then, I think the court may not pronounce for the will of 1920 or 1925 as being in either case the last will and testament of the deceased. The court pronounces for the will of 1935. of which probate in common form has been granted. The recall of probate is accordingly refused.

The parties were. 1 understand, in agreement as to costs, but as I believe at one stage an intimation was given that they would be reserved, they are reserved accordingly.