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Ann a nsfwoan or no OTHER (ANADlAN snnons FROM COASY TO COASY

nocus m/utsfk comm LLMITD liq-ii Rlno/lrlytlll pl unfit:

‘i Oontkiucd from page l0) l . iof gifts or other transactions inter‘ ‘vivcs it is considered by the Courtsj lof Equity that the natural influence‘ which such relations as those in‘

.1: .i illfuii! i» (end:

question involve, exerted by those i who possess it to obtain a benefit for.‘ lthemselves, is an undue iGifts or contracts brought about by ‘it are, therefore set aside unless the ‘ party benefited by it can show affir- i

‘ transaction was placed in such a. po- ‘lsition as would enable him to form ‘an. absolutely free and unfmleretl i judgment."

‘ ‘The lmv regarding wills is very “ tilffcrent from this. The natural in-

i’

i’ JUDGMENT 11v ' i INTERESTING CASE OF CONTESTED WILL

, ‘ OCTOBER 11. I930

no recourse but to put the most un- favorable construction upon those ac- tions of his to which suspicion at- taches." ‘

At the opening of the hearing of this appeal, counsel for the appell- ant applied for leave to examine Wil- liam Nelson as a witness ilrging as a

lnfluenfe-‘spccial reason therefor the strictures‘

of the Jildgc upon his not having

‘been examined as a witness at thcl jtrial before him, and they asked that ‘> matively that the other party to the‘h(i would than be permuted u, M;

examined as a \i'lll".t‘\S. This applic-

‘ation was opposed by coulirc‘. for the ‘lrespnndcnt nnd refilscti. iv)‘ the Court

of Appeal on the tzrs-tlilri that there was not-hing matcrial for him to answn and that the case had al-

rim clr.uz_l.n'r'ri=.rowlv GUARDIAN

ccutcrs were appointed and it must have been evident that the foatator’: diya fol-active business were over it was quite natural and‘ right that they should be anxious that the key should be in the hands of those who were w have charge of thyprop- erty which it represented rather than Er the possession of one who had no interest in‘ it. ‘Their action may, have been premature but there is no ground for saying that it was “unscrupul- ous" nor'a "suspicious circumstance"

That vague and confused doctrine ‘of “suspicious circumstances." (if iany trace of it remains since the de- jcislon of the Privy Council in Craig iv Lamoureauxl never went farther than to require for the removal of ‘the suspicion that there should be ‘strict proof of knowledge by the test- atcr of the nature and contents of the will. The ground of "suspicion" must. have been inherent 1n the _clrcumstances. not the mere off- spring of the suspecting person's imind: and the circumstances out of .- which the suspicion arose must have _bcen related to the question of the .tcstaicr's knowledge and understand-

tna Privy Council in Craig vs Lam- ouieaux, the respondent must bearf the coat-a in this Court and in and} Court below in a proceeding’ which was misccncelved. Owing to a prior arrangement between counsel, the. ltenographers accustomed charges fer reporting and extending the not- ‘ as of evidence should be paid out of

the estate. -

I have had the opportunity of reading the Judgment of the learned Chief Justice with which I fully IKPW and concur. ‘

The facts therein are sufficiently stated and the law bearing on the‘ cue fully get out.

I

r can add little m the Judgment] that can be of material use and I will confine myself to the review of some of the evidence that was given in the Court below and which was‘ before the Court on appeal. ' l

A great deal‘ of irrelevant and?‘

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ready lasted f0; an PZ.'(‘CIL'~’l\'2 length 1mg of the contents o; the Wm which of time. _On a inriiful rc-cxlhiin-‘m had executei

scandalous evidence was tendered and admitted to show that at var-‘i

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[over the child or the husband over‘ zthe wife, or the attorney over the;

“ client, may lawfully be exerts-d to ‘- obtain a will or legacy so long as the F tcstzitor thoroughly understands what f he is doing and is a free agent. There " is nothing illegal in the parent or

h ilsbantl pressing his claim on a child‘

‘ 0;" wife and obtaining a. recognition ‘ cf those claims in a legacy. prcvid rd that that pcrsilasirln stop short. cf coercion and that the volition of the testator. though biased and iml pf-essed by the relation in which he mantis to the legatce, is not ovcr- lzarne and subiected to the domina- tion of another.“ "The influence which will set aside a ivill." says Ml". Justice \Vllllllll'l'1. "must amount to force and coercion destroying free agency; it. mllSt,‘llO‘. he the influence of affection or at tachment: it must not no the mer: desire of gratifying . wishes of another, for that would b2 a very strong ground in support o! a l testamentary act; further, there I niurt be proof that the act was ob-

tained by this coercion; by impar-‘i

tunity which could not be resisted; that it was done merely for the sake o! peace. so that the motive was tantamount toforce and fear." Lord Haldane in delivering the judgment

moureaux says that "when once it has been proved that a will has bcczi erzecuted by a person of competent understanding-and apparently a free agent. the burden of proving that it was executed under undue influence rests upon the party who alleges it." Unfortunately, I think. the Judge of Trobate took a different view and held that "William Nelson by not 001N118 IOFWHTd to assist the Court failed in his duty and leaves the cou

\

the ’

cf the Privy Council in. Craig v. La-i

zlfion of the evidcnt". I sec no cause‘ for changing that opinion. I In the care of Parfit: vs Lawless a- ‘bove quoted. the pla‘llt‘f.'_ who vsas “in a similar lxsltitn ta William Nel- i501’! in this cast‘. zis callcrl 1111a‘ examined as a hcstili- witness hy the ‘parties opposing ti" it'll. The same‘ course was open to tit: pwitiancrs Irrcrpolidcnti in t"i‘ (are. ETi cz- side rculd have put him on t‘"~ 1'. .:i-'l and iihe record shows hc was in Court. ‘It Ls inlpossibie ta estimate the e‘:-‘. ‘tent to which the misconception of ll-‘Vfliinm Nélrozi’: (luflv in this |and ‘other matters herein referred t3 mm“ have influenced th~ lc. ncrl Jlltl".'.‘ in the (‘Ollfllhlflil a‘. vrhicll lie ar- rived.

E "Unscrnplzlzius" Ccndilct (‘hargcsl g

‘ It may have led him to regard as‘

.unfat'orabl: his conclint in respect to i

[the testatorls bonds dellfikllfll in a iu Cliar- ‘

‘safety dcposit bcx on a bark ilcttctoivn, The l: s red to Vi/Illiam N: ' l “unscrupulous? I think it only fair‘ [in rcfcr to this mattr-r llPYC and to‘ {say that in my O|3l‘\l‘il this ccn- ‘sure is not justified. 'l"lie cvlciencc‘ shows that V/iilianl Nck-rin v2"; 2-‘ ware of the Contents of ti‘: Ecll ivill.‘ ‘ -that he was the prin- c‘pal ltOllcIlflflffl ilritlrr it. His anx- iety in regard to the possession‘. of the key “m: therefore natural.‘ Mr. Tlnncy t) wlzoln tilc tcsiator ha} , entrusted his key hart the full con-i fidcnce of the testator and cviclrntly ‘|‘d0$0r'-'0tl it. bill; the continucrl llolrl-‘ in; of the key by mic who had no interest in the property involved was‘ to say the least nct ill the ordinary course of business. and when the c"-

But in this case "Suspicion" was followed to run riot over the whole field. The result was the admission

cf n vast amount of irrelevant andl

hearsay testimony covering a period “f 25 years or more. If anything is clear in this case ft

.i< the resolute intention of the test-

ntor from early days to treat Wil- llflm Nelsen as if he were his only ran. Even if all that was said by pet-

‘lilcncr were true, that ‘testator fre-

nucntly complained to her of Wil- liam Nelsons conduct towards him swing in effect on one occasion in rcr house that it was his intention to cut. him off without another shil- ling and to make a new will leaving ta her. hcr sons. her brothers and sisters the major portion of his es- tate. he did not do it. nor did he at any cther time or place show any intention of do‘ng it. nor does it ap- pear to have been again mentioned in his lifetime. Such an occurance wcilld seem at most a strange inter- lude. There is no evidence that the

atciitatcr was subjected to any undue

influence in the making of his will nci- is there any trace of fraud.

ln my opinion the judgement ap- pzalcd frcm cannot stand because in the Court below principles were ap- riled not revelant t/J the present case itdilch placed a burden of proof up- cn the appellants that they were not called upon to bear and because it. iippStlrs that the will in question was wcll proved and the executors named therein entitled to probate thereof.

The judgment cf the Court belvw shculd be reversed. the order rescind- lllg the grantof probate cancelled and the will established. adopted by

lions times in a period extendins] . back for some thirty years there were I ‘disagreements between William Nel-‘ con and the teatatcr. I cannot un-. derstand very well what bearing suchi‘ ,cvidence has on the subject matters‘ under consdcraticn nor why it, should l be admitted. Supposing such evid-I‘ ence to be true. the fact remains‘ that notwithstanding such squabbles, the testator 0f his own volition went‘ to Bummeraide and spent a daY Wmll

iniz ‘a will which did not materially differ from the ‘will now attacked.‘

Should a will be ‘set aside, which‘- iwas dictated by the' testator when‘ he was in possession of all his men-i tal faculties and so far as the evid-

ence goes under no undue in-

fluence or coercion. because inter-

csted witnesses are produced who‘ testified that years before William

Nelson Mcwilliams said nasty things

about the testatoz-‘s wifeor had a‘ quarrel with her son and had dis-

agreements with the tcstator himself. Admitting this, to be true, what poa- slble bearing can it have on a will executed years afterwards in pur- suance of hLs oft repeated intention; and in confirmation of a formerly‘ undisputed will supposed t6 have‘ been lost? In my opinion such ev-‘ idence is only an lncumbranca to‘ the record and. in the face of re-, ‘peated obiections on the pin-t of‘ counsel for the executors, should not‘ have been admitted. I

The learned Judge of Probate in’ his judgment is of oplnicn that Dr. Champion. who drew testator‘: will. as an executor and as such entitled to a commission on the Estate was naturally interested and prevents weight being given to his evidence. l‘ find nothing in the law to s-ilpportl such a contention. Executors under b‘ will are usually allowed a ccmmis-‘ slon on the winding up of an estate in compensation of the work they have done. Such commission is in the Judge of Probatez discretion and may be little or much and in any. event cannot exceed five per cant of the value of the estate. Such exec-‘ utor is not an interested party elf-l cept in no far as he is interested in

carrying out the provisions of the‘ will. This comm‘ssion allowed him is

utor can never be lure beforehand what such compensation will be and it could not iwsiilbly influence him‘ when drawing a will for his ccmihis-"i slon bears no relation to the con-‘

tents of the will. i

on the silence that was kept as tcj‘ the making of the present will.‘ Neither the tcstator, the Doctor, the nurse nor any of William Nelson McWllllami household said anytfmig about it on the occasion when Mrs. Lidstone and the members of her family visited the testator after the will wu executed. The iestator doubtless had his reasons for pre- serving that silence. It was his right

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had made a almiiar will which he thought had been lost and about the ‘validity of which no question has been inland. I can can no reason for cutting the present will aside. I agree that an order shall be made in pursuance l»: c» learned 0am awn-

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