DENNISTOUN, 1922 ness in a commercial sense," and even had he done so and Judgment. considered the delay unreasonable the result would not differ in substance from that at which he arrived. Judgment has been entered for nominal damages without costs. In my view the action should have been dismissed with costs, but as there is no cross-appeal it is sufficient to say that this appeal should be dismissed with costs. PRENDERGAST, J.A. concurred with Fullerton, J.A. Appeal dismissed with costs, Fullerton and Prendergast, KING'S BENCH 1922 TRIAL NATIONAL TRUST COMPANY V. TAYLOR ET AL Before MATHERS, C.J.K.B. Will-Testamentary Capacity-Undue Influence. A testator in his last illness made two wills, the second one three days after the first. The first will recognized, though perhaps somewhat capriciously, the claims of his kindred. The second will, which revoked all former wills, disregarded almost entirely the claims of kindred and left nearly all his property to his nurse. The second will was drawn by a different solicitor to whom the testator denied having made a prior will. Both wills were attacked as having been made when the testator was not of sound and disposing mind, and the second will was also attacked as having been obtained by undue influence. The Court on the evidence, and upon an extensive discussion of the law and review of authorities on testamentary capacity and undue influence, gave judgment upholding the second will. The question as to capacity in such a case is whether the testator, when he made his will by which his relations were excluded from sharing in his property, was capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them. The onus probandi lies upon those who propound the will to satisfy the conscience of the Court that the instrument propounded is the last will of a free and capable testator. Where it has been shown that the mind of the testator was in some measure disordered, the fact that natural affection and the claims of near relationship have been disregarded is a circumstance which strengthens the presumption against the will. A mere flickering of memory in a testator is not enough. It must be more than a mere passive memory. But the fact that the testator when he makes his will is much below normal mentally does not conclude the question of his capacity. A man's mind may have been in some degree debilitated and his memory seriously impaired by age or disease, and yet his mind and memory may be sufficiently sound to enable him to know and understand the business he is engaged in. If when a testator gives instructions for his will he has a disposing mind, his condition when he actually signs it is immaterial so long as he is able at that time to follow the reading of the will and to realize that his instructions have been carried out. Undue influence, within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or by fraud. Mere solicitation or importunity not carried to the extent of depriving the testator of power of free volition would not constitute undue influence. Where once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it. Undue influence cannot be presumed. The burden of proving it is not satisfied by showing that the person who received the benefit under the will had the power to unduly overbear the will of the testator. It must be shown that in the particular case the power was exercised and that it was by means of the exercise of that power that the will was obtained. Neither is the burden of proof satisfied by showing that the circumstances attending the execution of the will are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. A will made in a person's favour to induce him to refrain from doing that which he has a right to do does not constitute undue influence. Assuming in the case in question (what was not shown in evidence) that the nurse who benefited by the will had intimated an intention to leave the testator's service and the will was made in her favour in dread of her so doing and to induce her to remain, that would not be sufficient to constitute undue influence. ARGUED: 11th-14th April, 1922. DECIDED: 9th June, 1922. 1922 Proceedings to establish a second will of a testator and for Statement. its admission to probate. A first will, revoked in effect by the second will, was asked to be established by a beneficiary thereunder who attacked the second will as obtained under undue influence. The testator's next-of-kin attacked both wills as made when the testator was not of sound and disposing mind, memory and understanding, and also attacked the second will Statement. Judgment declaring the second will to be the last will and testament of the testator and admitting it to probate. J. W. E. Armstrong, and H. M. Hughes, for the National Trust Co. J. Chalmers, for the Canadian Guarantee Trust Co. P. J. Montague, for Miss Taylor. H. V. Hudson, for Mrs. Bushe and Mrs. Stockdale. MATHERS, C.J.K.B.-On February 2, 1921, the late Colonel Hosmer executed an instrument, hereinafter referred to as the first will, by which a legacy of $200 was left to the defendant Edith Taylor; $500 to each of the children of his sister Mrs. Bushe, and the remainder of his estate, real and personal, to his late wife's sister Mrs. Fraser, and in the event of her decease to her son Ronald, and he appointed the Canadian Guarantee Trust Company executor. Three days later, on February 5, he executed another instrument, hereinafter referred to as the second will, revoking all former wills, giving a legacy of $100 to the wife of his nephew Cheam Bushe, and all the rest of his real and personal estate to the defendant Taylor, and he appointed the plaintiff the National Trust Company executor of this will. He died on February 12, 1921, the immediate cause of his death being pneumonia, the result of a chill received about the 24th of the previous month of January. He was then 68 years of age. An application was made to the Surrogate Court at Brandon by the plaintiff for probate of the second will. A caveat was entered by the Canadian Guarantee Trust Company, the executor under the first will. Thereupon an order was made transferring the proceedings to this Court. The plaintiff asks for the establishment of the second will and that it be admitted to probate. Mrs. Fraser, the chief beneficiary under the first will, denies that the document referred to as the second will is the will of the late Colonel Hosmer, but that if he did execute it that it was obtained by the undue influence of the defendant Taylor, and she asks for the establishment of the first will. The defendants Mrs. Stockdale and Mrs. Bushe, the sisters and next-of-kin of Colonel Hosmer, deny that either of the documents is a valid will. They allege that at the time they purport to have been executed he was not of sound and disposing mind, memory and understanding, and alternatively that the second will was obtained by the undue influence of the defendant Edith Taylor. The defendant the Canadian Guarantee Trust Company propounds for probate the first will in the event of the Court holding against the document alleged to be the second will. The fact that the late Colonel Hosmer signed each of the documents with the formalities required by law for the execution of a will is not denied. But that he had the necessary testamentary capacity when either instrument was made, and particularly the second, is seriously contested by some of the defendants, while by others the issue is raised that the instrument called the second will was procured to be executed by the undue influence of the defendant Taylor. The English law concedes to the owner of property the unfettered right of determining by his will to whom it shall pass upon his decease. In so disposing of it he has a right to be eccentric, capricious, absurd and even unjust in the dispositions made, because none of these prove lack of capacity though they may cast some light upon the question: Pilkington v. Gray [1899] A.C. 401, 68 L.J.P.C. 63; Lloyd v. Robertson, 35 O.L.R. 264; Pare v. Cusson, 31 Man. R. 197, [1921] 2 W.W.R. 8. Old age often ceases to excite interest and the control which the law gives to a person over the disposal of his or her property is one of the most efficient means of commanding respect and attention. Upon the exercise of this power the law, however, imposes the condition that at the time of its exercise the testator be of sound and disposing mind, memory and understanding. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind 1922 Judgment. MATHERS, 1922 Judgment MATHERS, becomes a prey to insane delusions, calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence-in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand. [Per Lord Chief Justice Cockburn, in Banks v. Goodfellow, L.R. 5 Q.B. 549, at p. 565, 39 L.J.Q.B. 237.] In an earlier passage on the same page he lays down what is essential to the constitution of testamentary capacity with what Sir James Hannen, in Boughton v. Knight, L.R. 3 P. 64, 42 L.J.P. 25, refers to as "singular accuracy." He said: It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effect; 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 no 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. In Banks v. Goodfellow, supra, Chief Justice Cockburn quotes from several United States cases in which he says the law respecting enfeebled mentality from age and disease is extremely well treated. From Den v. Vancleve, 2 South. 660, he quotes: "By the terms 'a sound and disposing mind and memory' it has not been understood that a testator must possess the qualities of the mind in the highest degree; otherwise, very few could ever make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left to clearly discern and discreetly to judge, of all these things and all those circumstances, which enter into the nature of the rational, fair and just 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 and disposing mind and memory." And again from Stevens v. Vancleve, 4 Wash. at p. 276: "But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he has been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life * * The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable |