WILL DISPUTE.

Star (Christchurch), Volume LXIV, Issue 927, 23 November 1933, Page 11

WILL DISPUTE.

Order for Revocation of V. Probate Sought. FARMER'S ESTATE OF £BOOO. An order revoking probate and pronouncing against the will of the late John Duncan, retired farmer, formerly of Darfield, on the grounds of lack of testamentary capacity, was sought in the Supreme Court this morning before Mr Justice Ostler. Plaintiff was James Francis Duncan, sheep farmer, of Hawkins '(Mr Twyneham), and the defendants were Alexander Duncan, sheep farmer, of Springfield, John Joseph Duncan, sheep farmer, of Waiau, and Daniel M’Laughlin, farmer, of Darfield. Mr Lascelles appeared for the defendant M’Laughlin, while the other two defendants appeared in person. It was stated that the estate was £BOOO, and that the chief point at issue was £IOOO left to M’Laughlin, a nephew of testator. The statement of set out that tne defendants Duncan and the plaintiff were the sons of the late John Duncan. Alexander and John Joseph Duncan were the trustees under the will of John Duncan, while defendant M’Laughlin was a beneficiary under the will, of which probate had been granted on March 7, 1929. John Duncan had died on February 14, 1929, having made his will on December 5, 1928, upon which probate had been granted. It was contended that at the time the will was executed John Duncan was not of sound mind, memory and understanding, and was without testamentary capacity. Plaintiff, therefore, claimed as follows: (1) For an order revoking probate granted to the defendants Alexander Duncan and “John Joseph Duncan; (2T for a pronouncement against the will dated December 5, 1928; (3) for such further order as might seem fit; (4) for costs of the action. Testator Aged Ninety-five. Mr Twyneham said that the testator was about ninety-five years of age when he died, and the allegation was that he was not mentally sound enough to make a will because there was a disorder of his mind which poisoned his affections and perverted his sense of right. Testator had had a small farm at Darfield which his sons had really worked for* a long period. His mental state had become so impossible by 1923 that the farm had had to be sold and Duncan was made to retire. As far back as 1923 testator had had hallucinations, one of which was that perfectly respectable neighbours with whom he had been on the best of terms were stealing from him. There was no foundation for the allegations. Furthermore, Duncan would do all sorts of curious things, and had delusions to the detriment of his family. On other occasions testator said he saw a man employed on the place meeting his daughter in plantations, whereas the man was eighty qr ninety miles away. The sons had agreed, on account of their father’s actions, that they would not stand by a will made after 1923 if an inequitable distribution was made, but no action had been taken until their mother’s death, as she had asked that nothing shbulff be 'done while she was alive. , i To his Honor, Mr Twyneham said that the estate was worth £BOOO. The income went to the widow until her death, when the division was to be £IOOO to M’Laughlin, a nephew, and the rest between the three sons. It was really a question of the £I.OOO left to M’Laughlin. Counsel went on to describe further curious actions of testator, and said that Duncan had lived in M’Laughlin’s house for a month, and • while there had made the will. “ Sat* ** Against family Alleged. Alexander Duncan gave evidence along the lines of counsel's remarks. He added tliafc testator was childish, and was getting worse all the time an the last years of his life. Sometimes he had had inflated, opinions of his wealth, and thought he was worth an enormous sum. Testator could not read or write, and at various times he had “ sets ” against different members of the family. The last straw had been the death of his daughter, and after she died he had delusions that he saw her walking through the house. Prior to the approach of senility testator had been a fair and highly-respect-ed resident of the district. ) To Mr Lascelles, witness said he thought M'Laughlin was not morally entitled to thtf £IOOO.

David M’Millan, surgeon, of 54, Burnside Road, said that he had known John Duncan for many years and had found him to be querulous and, for want of a better word, can-

tankerous. John Joseph Duncan, James Francis Duncan and John Cochran, farmer, of Springfield, also gave evidence. (Proceeding.)