LITIGATION OVER A WILL.

Taranaki Daily News, 24 December 1923, Page 8

LITIGATION OVER A WILL.

ESTATE OF WItLIAM ROWE. WILL HELD VALID. Following is the full judgment of the Hon. Mr. Justice Salmond in the case, heard at the last sifting of the Supreme Court, in which grant of probate of the will of the late William Rowe was opposed by two of his children on the ground that at the time of making the will the test.ator was not of sufficient testamentary capacity. The effect of the judgment is that the property of the deceased goes to the widow as the beneficiary. William Rowe died on August 11, 1923, having made his will on August 9, whereby he left his whole estate to his wife Sarah Sanger Rowe and appointed her his executrix. On November 15 an order nisi for probate of this will was made under section 28 of the Administration Act, 1908, a caveat having been lodged by a son and daughter of the deceased, namely George William Rowe and Clarice Honnor Lethbridge. This is a motion by the executrix to make that order absolute, and the caveators have appeared to show cause. The cause alleged by the caveators is that tfie testator was at the time of execution deprived of testamentary capacity by the illness of which he shortly afterwards died. It is not suggested that he was mentally unsound, but it is alleged that he was in such a condition of bodily weakness and accompanying mental lethargy as to be incapable of understanding 'the contents of the will and of exercising any proper judgment as to the testamentary dispositions to •be made by him. The testator was a man of 66 years of age. He left a widow aged 51 and lour children. Thrtee of these are adults, the fourth being a child 13 years of age. His estate was worth £4OOO, consisting of a mortgage for £2950, freehold property worth £855, and certain personal effects. He died in the Nev/ Plymouth Hospi- ; tai on Saturday, August 11, 1923. His i will was made in that hospital on the • morning of Thursday, 9th. He had ■ been taken from his home to the hospi- ; tai on Tuesday the 7th. The will was 1 prepared and its execution obtained by ; Mr. Philip Hopkins the managing clerk ' of the testator's solicitors. It was at- . tested by Mr. Hopkins and by Miss ; Leighton the nurse in charge of the hos- ; pital ward. The testator was too weak j to make a satisfactory signature, and • the will was executed by mark accord- j ingly. The illness from which the testa- ■ tor was suffering was uraemia superven- ; ing upon an attack of influenza. i Testimony in support of the will has ■ been given by Mr. Hopkins, Miss Leigh- ' ton, and Miss Kilbride another of the '

hospital nurses. Mr. Hopkins states that he was well known to the testator; that at the request of Mrs. Rowe and her son George Rowe one of the caveators, he vis’ted the hospital on Thursday morning for the purpose of getting the deceased to make a will; that before execution he carried on a general conversation with the deceased for some minutes; that the deceased himself without any suggestion from the witness expressed his intention of leaving everything to his wife; that he was with the deceased on that occasion for half an hour or three quarters of an hour; that the deceased’s mental condition was quite clear ‘throughout the interview; that the witness had no doubt that the testator understood the will and knew what he was doing. Miss Leighton says that the deceased was very ill on the first two days of his residence in the hospital, namely the Tuesday and Wednesday; that on the following day, on which the will was signed, he was quite rational and much brighter than before: that Mr. Hopkins explained to the testator that he was leaving everything to his wife; that the. testator assented; saying that that was all right; that she was satisfied, that the testator knew what was going on; that she had no doubt as to his ability to understand what he was doing; that his eyes were open and that he was taking in everything that went on; that after the will wag signed he was all right on that day but sank the next day. Miss Kilbride says that she was a charge nurse in the ward in which the testator lay; that on the Thursday his condition was better than on the Wednesday; that she came on duty at two in the afternoon of the Thursday; that she then saw that he was much improved: that when speken to he answered quite rationally; that on the Thursday he was quite capable of un- , derstanding and of transacting business. Against this evidence is to be set that of the medical men. namely Dr. Home the medical superintendent of the hos- , pital, and Dr. Thomson who attended t’ue testator privately before his admission to the hospital. Dr, Home ;s unfortunately unable, owing to absence from the hospital on that day, to give any evidence as to the testator’s condition on the Thursday on which the will was executed. He states, howev?’-, that on the Tuesday and Wednesday Rowe was unfit to make a will, being in a comatose condition owing to uraemic poisoning. The evidence satisfies me, however, that his condition on | Thursday was considerably improved. I Indeed it was in consequence of this im- I provement that the hospital authori- I ties sent a telephonic message to Mrs. > Rowe on the Thursday morning authorising the visiting of Rowe for the purpose of getting him to make a will. On the Wednesday Mrs. Rowe had made inquiries on this point at the hospital an.l had been informed that he was not on that day well enough for the purpose, but that she would be communicated with later, I understand from the medical evidence that the mental condition due to uraemia is variable and not uniformly progressive. Dr. Home’s evidence as to Rowe’s comatose condition on Tuesday and Wednesday is therefore not inconsistent with the evidence of Mr. Hopkins and the two nurses. that he was well enough on Thurs- i day morning to make a will. The evidence of Dr. Thomson supports that of Dr. Home as to Rowe’s condition up to and including Wednesday. Dr. Thomson first saw the deceased on the 2nd, five days before admission to the hospital.

Dr. Thomson saw Rowe in the hospi- ' tai on the Wednesday and did not con- ' sider him then capable of making a will, and informed Mrs. Rowe to that effect accordingly. On Thursday morning Dr. Thomson saw Rowe again. He found the patient much better than on the Wednesday and informed the son George Rowe to that effect. Dr. Thomson says that he did not consider Rowe fit to make a will even on the Thursday. On this point, however, his evidence is in conflict with that of Mr. Hopkins Miss Leighton, and Miss Kilbride. The material points of Dr. Thomson’s evidence are the following: “I went to Ills bedside. He was lying with his eyes

closed in a relaxed condition. He made an effort to shakl hands and could not. I asked him if he knew me and he said yes. I asked him where he was and he said he was in hospital. I asked him other questions in regard to his condition and how he felt and he answered them all in a listless manner and volunteered no questions or statements himself. He answered in a tired manner with no alertness. I do | not think that he was fit to make a will 5 ! then. I was talking to him for five or j ten minutes. He answered most of the ‘ questions that I put to him and they ! were sensible answers as far as they ‘ I went. He was able to keep awake while I J was talking. I rang up George Rowe ‘ to say that his father was much better 5 | that day. Lassitude is a usual accomL I paniment of that disease and at times f the patient is better than others. The - patient might be quite alert at times. There was no sign of delusion on the > Thursday. I cannot say what his con- > dition was at the time that he made » the will. I doubt whether he would be I in a condition to make a will. I would 1 not say that he was so bad that he did s not know that he was making a will. There is no doubt that when the 1 'testator executed this will he was a - dying man affected in a marked degree 5 by that mental lethargy which is a J diaractexised feature of the disease of - which he died. On the other hand he 5 was in no pain, he was not under the influence of any opiate or other drug, and ’ he suffered from no delusions or any ’ ’form of mental unsqundness. The ques- ' tion for determination therefore is r whether at the actual time of execution I he was sufficiently alert to know that 1 he was making a will to understand its L contents, and to realise adequately the > nature of the claims upon him in respect : of his testamentary dispositions. 1 ' On this question I am bound to at- ; ' tach weight to the testimony of thosewho were actually present at ’ the very time when the will was dis ! ; cussed and executed, and who therefore ■ I possessed an opportunity of observing • < the testator’s mental attitude at the r i critical period. The testimony of Mr. ■ ■ Hopkins and Miss Leighton on this . j matter 1 - was positive and confident. It ' is supported by the similar evidence of • Miss Kilbride, 'who had an opportunity I of observing the patient throughout the ! remainder of the day. I do not feel ; justified in rejecting this concurrent i testimony notwithstanding the adverse i opinion formed by Dr. Thomson as to i the patient’s condition on Thursday. R > is to be remembered that the will was I of the simplest description possible. It i was such as to require a minimum ot mental effort, alertness, or judgment. < This is the very familiar case of a, man i leaving the entirety of a small estate to ; his wife and appointing her the execuJ trix of the will. The evidence is sufii- i : cient to satisfy nie that the testator, i although a dying man whose Vphysical i And mental powers were already at a ; low ebb, was mentally sound and was • not at the time of the execution in any ! such condition of coma or lethargy as to deprive him of testamentary capacity. !» The order nisi for probate is made ab- ’ solute accordingly. As to costs there ' was in my opinion reasonable ground : for the action of the caveators in requir- ! ing proof of testamentary capacity. • They will therefore not be ordered to | pay the costs of the executrix. On the ! other hand this litigation has not arisen out of any misconduct on the part of the testator or of the beneficiary under ' the will. There is no ground therefore j for ordering the costs of the caveators to be paid out of the estate. It follows that there will be no order as to costs.