Royal Trust Company v. Ford et al., [1971] SCR 831

Supreme Court of Canada

Royal Trust Company v. Ford et al., [1971] S.C.R. 831

Date: 1971-04-27

The Royal Trust Company (Plaintiff) Appellant;

and

John Douglas Wharton Ford and Christ Church Cathedral Buildings Limited (Defendants) Respondents.

1970: December 10, 11, 14, 15; 1971: April 27.

Present: Martland, Judson, Hall, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Wills—Doubt as to legitimacy of son expressed by testator—Evidence insufficient to establish insane delusion motivating testator to change will.

There had been a serious lack of harmony between the testator and his wife and on the latter’s return to Victoria, British Columbia, on July 4, 1921, from an extended visit to Australia, she told her husband that she had lived with another man for 14 days in that country. The husband and wife resumed marital relations after a short interval and on May 24, 1922, a son was born. This child was the only issue of the marriage. In 1927, the parties entered into a separation agreement and the wife moved to Australia with their five-year old son.

Under a will made by the testator in 1933, his son was the sole beneficiary, subject to two small bequests and a life interest in a portion of the estate to the testator’s sister and an annuity to his estranged wife. In 1952, a first codicil was executed whereby $200,000 was left to Christ Church, Victoria, and $125,000 to another charity. In 1954, a second codicil provided $10,000 to purchase a 10-year annuity for the testator’s housekeeper. These codicils were in diminution of the son’s residuary interest.

A new will executed by the testator in 1958 provided for the distribution of most of the estate to various charities. The son received $50,000 and Christ Church received 5,000 shares in Steep Rock Iron Mines. Six codicils were executed in the period up to 1965. In 1965, the testator entered a nursing home, and died there in 1967 at the age of 94 years.

[Page 832]

The executor propounded the will for probate in solemn form. Probate was granted at trial but on appeal the judgment was reversed and probate was granted of the earlier will made in 1933. The ground for the reversal was that the testator was suffering from an insane delusion as to the legitimacy of his son. The executor appealed to this Court.

Held: The appeal should be allowed and the judgment at trial restored.

The propounder of a will must prove by a preponderance of evidence that a testator was competent in every respect, and this includes negativing the existence of any insane delusions. On a consideration of all the evidence and in the light of dealing with an otherwise thoroughly competent testator, the trial judge rejected the contention that a delusion existed. He found that the testator really believed the son to be legitimate, even though he expressed doubt. Although the 1933 will was largely in the son’s favour, a separation for 31 years prior to the 1958 will and the reception of bad reports about his son were sufficient reason for a sane testator to change his will. Furthermore, a legacy of $50,000 was inconsistent with a testator having a poisoned mind resulting in the complete rejection of his son, and consistent only with belief in his legitimacy or, at most, doubt. Whether the testator’s suspicions were reasonable or not, they were such as a sane man could hold.

Throughout most of the son’s life, father and son disregarded each other. By the 1950’s, they were strangers and what remained then was the bare fact of paternity. Whether the evidence showed merely an indifference to the son or, at most a doubt as to legitimacy, this was not sufficient to establish a delusion, much less an insane delusion which motivated the testator to change his will.

APPEAL from a judgment of the Court of Appear for British Columbia[1] reversing a judgment of Wootton J. and declaring invalid a will (and six codicils thereto) of a testator propounded by the appellant for probate in solemn form. Appeal allowed.

[Page 833]

D.M. Gordon, Q.C., and J. C. Scott-Harston, Q.C., for the plaintiff, appellant.

John J. Robinette, Q.C., and Donald G. Cameron, for the defendant, respondent, John Douglas Wharton Ford.

Hugh L. Henderson, for the defendant, respondent, Christ Church Cathedral Buildings Limited.

The judgment of the Court was delivered by

JUDSON J.—The appellant, The Royal Trust Company, is the executor named in a will and six codicils of one, Allan Douglas Ford, of Victoria, British Columbia, who died on October 26, 1967. The respondent, John Douglas Wharton Ford, is the only child of the deceased. He was born on May 24, 1922. The will in question was executed on May 22, 1958. The executor propounded the will for probate in solemn form. Probate was granted at trial but on appeal the judgment was reversed and probate was granted of an earlier will made in 1933. The ground for the reversal was that the testator was suffering from an insane delusion as to the legitimacy of his son. The Trust Company seeks the restoration of the judgment at trial.

The son took almost the entire estate under the 1933 will. By this will, Christ Church was to receive $5,000, the testator’s brother was given a small bequest, and the estate was then to be divided into three equal parts: income from the first part was to be accumulated during the son’s minority but paid to him thereafter until age 30, at which time he was to receive the corpus; income from the second part was to be paid to the testator’s sister until her death, at which time the son was to receive both the income and the corpus; income from the third part was to go to the testator’s estranged wife for life but only up to £250 (pursuant to a separation agreement made in 1927) with the son to receive any excess income plus the corpus at her death. In 1952, a first codicil was executed whereby $200,000 was left to Christ Church and $125,000 to another charity. In 1954, a second codicil provided $10,000 to

[Page 834]

purchase a 10-year annuity for the testator’s housekeeper. These codicils were in diminution of the son’s interest in the trusts set up by the 1933 will.

The 1958 will provided a legacy of only $50,000 for the son, and 5,000 shares in Steep Rock Iron Mines to Christ Church. As Christ Church also stood to benefit a great deal more under the earlier will and codicils, it was joined as a party to this action by order of the Court. Most of the rest of the estate went to charities.

The testator was born in England and in 1908, at the age of 35, married a Miss Estelle Anita McGee in London. His wife was 13 years younger and was born and had lived for some time in Australia. In 1913 they moved to Victoria, British Columbia. Between 1919 and 1921, Mrs. Ford made two extended trips to Australia. It is apparent from the record that these trips were made against the husband’s wishes and that by this time there was a serious lack of harmony in the marriage. On Mrs. Ford’s return on July 4, 1921, she told her husband that she had lived with another man for 14 days in Australia. She made a confession in writing. The husband and wife resumed marital relations after a short interval and on May 24, 1922, the respondent, John Douglas Wharton Ford, was born. He was the only issue of the marriage. In 1927, the parties entered into a separation agreement and Mrs. Ford moved to Australia with their five-year old son.

We have in the record an exchange of letters between husband and wife when they were still living under the same roof. The wife’s letter is a detailed account of her grievances during her married life. The husband’s reply answers his wife point by point and adds some grievances of his own. This exchange was in August of 1927, shortly before the separation agreement and Mrs. Ford’s departure.

There is no doubt that the testator recognized John Douglas Wharton Ford as his son. He registered his son’s birth on June 1, 1922, at which

[Page 835]

time he certified that the child was legitimate and that he was the father. A certificate evidencing the baptism of the son into the Christ Church on July 25, 1922, indicates similar beliefs. In the separation agreement of 1927, John Douglas Wharton Ford was referred to numerous times as “their son”, and a right of access was granted to the testator. In 1933, the testator, then 60 years old, drew up the will leaving almost his entire estate to his son as outlined above, and John Douglas Wharton Ford is referred to as his son over forty times in that document. The son was then eleven years old.

In the years following, Mrs. Ford wrote to the testator occasionally, apparently relating mainly those deeds and events unfavourable to their son. The testator never forgave his wife for her adultery but apparently never doubted his son’s legitimacy. It is known precisely when Mrs. Ford left Australia in 1921 and when she landed in British Columbia, and approximately when there was a resumption of matrimonial relations. There is no possibility that the son could have been conceived in Australia.

In 1954, the testator, then 81 years old, had a slight stroke which affected him for only one day. There was also some evidence that commencing shortly before this, the testator became gradually more repetitious and dramatic, and over-estimated the value of certain objects of art which he owned.

In February of 1956, the first rough draft of instructions for a new will was typed. Numerous amendments and redrafts were subsequently made, with the testator manifesting his continuing acumen through his proposed changes. Mrs. Ford died in 1957 during this period. The new will was finally executed May 22, 1958, and provided for the distribution of most of the estate to various charities. The son received a legacy of $50,000. Six codicils were executed in the period up to 1965. In 1965, the testator entered a nursing home, and died there in 1967 at the age of 94 years.

[Page 836]

The testator first began to express doubts about the legitimacy of his son in 1955 or 1956, as whom knew the testator fairly well. The first draft testified to by four witnesses at trial, each of of his 1958 will was prepared by officers of the Trust Company and contained such references as “my son John Douglas Wharton Ford” and “my said son.” The testator himself struck out the words “my son” and “my said son”, replacing the latter with “he”. A further draft in 1956 prepared by a solicitor contained similar references which were deleted again by the testator. An undated memorandum of instructions for the will prepared by the solicitor contains the following paragraph:

Third trip to Australia was after confession, reconciliation and birth of son whom I never acknowledged. He was born after she returned from Australia. I think someone else was the father although I had intercourse with her after the confession.

At the date of the will the testator was 85 years old and the medical evidence shows that he was a man of unusually robust physique. He lived for nine and one-half years after the making of the will; he was in full possession of his business ability; he was managing a large estate. He held custody of his own securities and there were six reliable witnesses who had known him for a long time who testified that in all the years that they had known him, he had never by act or word shown mental weakness up to 1965 when he entered a nursing home. He was declared incapable of managing his affairs in December of 1965 and he died in October of 1967 at the age of 94. Although he delivered physical possession of his securities to The Royal Trust Company in 1960, he retained the power of management until he entered the nursing home.

There was every reason for making a new will in 1958. His first will was 25 years old. At the time he made that will his son was eleven years old. We do not know the extent of his estate in 1933, but in 1952, when he made the first codicil

[Page 837]

to that will, he left $200,000 to Christ Church and $125,000 to another charity, both in diminution of the son’s interest.

The testator gave instructions for a new will in February of 1956 and it was not until May 22, 1958, that it was executed. He first collaborated with trust company officials who had known him well for a long number of years. Then a solicitor was instructed and he continued his collaboration with that solicitor, examining every draft right up to the execution of the will. The collaboration was detailed and whenever he made criticisms or suggestions, they were intelligent and to the point and were adopted by the solicitor.

During part of this time, in 1957 and 1958, he was in correspondence with his son. This correspondence is most significant in this case. It is the only evidence coming direct from the pen of the testator which shows his attitude towards his son.

The first letter is dated February 7, 1957. It is from the son to the father. The son says that he had not written for some years because he had heard nothing from his father. He mentions that relations between himself and his mother were difficult, that he had not told her that he was writing and that he would not write at any greater length this time but if his father wished to hear further, “do write back.”

On April 25, 1957, the father answered this letter. It was 30 years after the separation, 35 years after the birth of the son and he was still full of the old complaints about his wife’s conduct.

On May 12, 1957, the son replied giving an account of his own business activity (he was a radio announcer) and informing his father of his mother’s death on April 25, 1957. He proposed a meeting with his father.

The father replied promptly to this letter on May 18, 1957. He discussed at some length the

[Page 838]

son’s interest in his mother’s estate but he stated in the opening words of his letter “I have not yet had time to arrive at any definite conclusion as to the principal subject of your letter”, which is obviously a reference to the son’s proposal for a meeting.

The son replied on May 27, 1957. He referred to his mother’s papers. She had kept copies of letters which she had sent to the testator and which appear to have been intended to give the father a poor impression of the son. The son repeated his request for a meeting.

On September 10, 1957, the testator wrote to an officer of a Melbourne trust company. This officer had been in charge of the payments to the wife under the separation agreement. The testator asked for a confidential report on the son in the following terms:

In confidence. Re: John Douglas Wharton Ford. I have heard nothing of him since the early days of this summer. Mrs. Ford died leaving this situation very complex. I have no idea of how much of it you are aware. Having taken him from me by means of the “Separation Agreement” she then seemed most anxious to make sure that we did not come together again. And apparently to that end, she has told me much about him which I have frequently thought might well have been omitted. John has made suggestions to me since his Mother’s death that subject to my approval he would himself make the journey over here to effect such a meeting. On the assumption that all that I have been told by Mrs. Ford about John is within the truth I have a strong feeling against the wisdom of encouraging any such idea. I have never seen him since he was five years. During those years the child developed an affection for me as was not at all to his Mother’s liking. All I have known of John during the last thirty years is nothing other than just what Mrs. Ford thought fit to tell me. As the result of which, to be quite candid with you, I view a meeting with grave misgivings. One of the great Greek Philosophers said, “the first duty of man is to know himself.” At the age of 85 I most certainly know myself, and I can well conceive of developments that might prompt something being done that could never be undone, if all that Mrs. Ford has told me turned out to be true. Can you, in strict confidence, offer me any guidance?

(Signed) A.D. Ford

[Page 839]

On September 19, 1957, the officer of the trust company answered the letter of inquiry from the testator. This was a very guarded letter, and very wisely so, but it is significant in that it shows how much the testator could possibly know about his son’s life in Australia, which was not very much. It reads as follows:

NATIONAL TRUSTEES

MC/DM	19th September 1957
Strictly Personal
Mr. A.D. Ford,
219 Pemberton Building,
Victoria, B.C.
Canada.

Dear Mr. Ford:

I have your letter of 10th September and will deal with the second part of it first.

There was a time when I used to see your son occasionally but it is many years now since we have had contact and, therefore, I am unable to give you any authoritative assessment of his character and present way of living. I think his mother tried hard to build him up by a basic education at a fashionable school but I felt there was almost a complete lack of inner discipline and this seemed to be expressed in his earlier conduct. However, many men have been through this stage and I would be inclined to the view that probably John has relatively stabilised. He often, in our conversations which would be five or seven years ago, said that he would love to see you personally but whether this was based on affection or on mundane things, it would be difficult to judge. My inclination would be not to discourage his going to Canada if his desire appeared to be based upon considerations that seem genuine. But I am afraid I cannot be of much help to you much as I would like to be and would add that now I have not the opportunity of renewing the personal association.

The final payment to the late Mrs. Ford from money held by us on your account was made on the 14th March last and at the date of her death—

[Page 840]

namely, 25th April, 1957—there were no funds standing at the credit of the account.

Best wishes,

Yours truly,

(Signed) M. Chamberlin

Manager

On May 7, 1958, the testator wrote to his son apologizing for the belated reply. The greater part of the letter deals with complaints about his wife and her conduct. The concluding paragraph of this letter reads:

You have never told me how at this time you stand in matters Matrimonial? Your Mother in one of her letters referred to your 3 Wives? How come? How many children have you now? I certainly could not manage with one wife, how could you get on with three? When your Mother managed to part us in 1927 she seemed by her letters to have made up her mind to keep us there. She never told me anything much in your favour. I’ve sometimes wondered if all she told me against you was not prompted by her wish to keep us where she had got us, apart. This, I’m afraid is not a very interesting letter for you. See if you can’t improve upon it.

On May 15, 1958, the son replied giving an account of his life, and particularly his relations with his mother, and expressing again his desire for a meeting. He told his father that he had not had three wives and that he was living with his second wife.

The father’s reply was again full of complaints about the mother, her conduct and family matters, including his suspicion of the identity of the person with whom his wife had been guilty of adultery in Australia in 1922 (he was apparently wrong about the identity of this person). Then he answered the son’s proposal for a meeting in the following terms:

Now we had better consider the question you raise as to the matter of the desirability of you coming over

[Page 841]

here to pay me a visit. I have a pronounced feeling that however much I would like to meet you, the time for a Meeting has long passed. You will meet—if you should come—nothing other than an old man, fairly well preserved. I am now in my eighty-sixth year. Whatever you may say and whatever you may think will never dispossess my mind of the opinion I have always held that in going the limit to hit me as hard as she possibly could, she, without any intention of doing so, hit you just as hard. That was my Wife. Your Mother.

The son replied on August 20, 1958. He seems to have given an adequate answer to his father’s suspicion. He did mention the name of the person he thought was concerned and also told his father that that person had been dead for nearly 30 years. He asked for an early reply and further consideration of his proposal for a meeting. He also said that he had discontinued the use of “Wharton” as one of his given names.

The father did not answer this letter until August 14, 1959, a year later. He said nothing about the meeting but again he was complaining about his wife. He also said that the son should not have discontinued the use of the name “Wharton” and gave sound family reasons for this criticism. Apparently, some ancestor of that name had set up a trust, which had proved to be very helpful to him in his early years.

The son replied immediately telling his father about the nature of his work and hoping that another year would not elapse before his father wrote.

The last letter from the testator to his son was dated July 7, 1960. He described his stay in the hospital. He mentioned one investment of which he thought well and he referred to a sensational murder which had happened in the United States and which had received much publicity in the newspapers. This is the end of the correspondence that was put in.

The correspondence between father and son is most revealing. It begins with the two in the position of virtual strangers. It shows that the testator

[Page 842]

still preserved his bitter hostility to his wife and that one of the reasons for this was that the wife had separated him from his son in 1927. He distrusted the adverse reports that the wife had made about the son from time to time and he made a rational rejection of his son’s overtures—his own age and 31 years of separation. There is, in this correspondence, no suggestion of illegitimacy. During most of this time the testator engaged in the process of will making. He left his son at the age of 36 a legacy of $50,000. When the son was eleven he had left him the residuary estate. What the estate was worth in 1933 we have no means of knowing. We are in the same position with regard to the worth of the estate in 1952 and 1954, when, by two codicils, the son’s residuary interest was reduced by the amount of $325,000 for two charitable bequests. These two charitable bequests were to abate, if it was necessary, for the protection of the interests of the wife and sister. There was no similar protection for the son’s interest.

The testator’s interest in charity in a testamentary way goes back to 1952. It is more pronounced in 1958. He still left the son $50,000. He had taken legal advice as to his obligations to his wife under the British Columbia Testator’s Family Maintenance Act. He sought no such advice with regard to his obligations, if any, to his son under this legislation.

There were five drafts prepared prior to the execution of the will on May 22, 1958. The first three drafts were drawn up by the manager of The Royal Trust Company, while the final two drafts and the will in final form were drafted by a solicitor.

In the first draft, dated February 20, 1956, the testator gave his son, on his mother’s death, $25,000 plus the income on $75,000 for fife. If the son predeceased his mother, he would re-

[Page 843]

ceive nothing. The testator struck out this provision and substituted a bequest of $50,000 to his son.

The second draft, not dated, provided that the son was to receive the $50,000 if living at the testator’s death, plus $100,000 on his mother’s death but only if she survived the testator and the son was then living.

The third draft, dated June 27, 1956, contained identical bequests, but in the fourth draft, dated October 18, 1956, only the $50,000 bequest was included, again dependent on the son surviving the testator.

Both the fifth draft, which was drawn up in May 1957, and the will in final form remained unchanged on this point.

On the testator’s copy of the executed will, he made several annotations to the bequest to his son which show the testator’s newly-found knowledge of his son. This knowledge was gained through letters from his son received by the testator at approximately the same time as the will was executed. The bequest in the will provided:

to pay to John Douglas Wharton Ford of Australia if living at the date of my death the sum of $50,000.00; PROVIDED that if the said John Douglas Wharton Ford shall not survive me the said fund shall fall into and form part of the residue of my estate.

As annotated by the testator, the bequest would have read, had a codicil been executed:

to pay to John Douglas Wharton Ford of Australia, at present residing in Melbourne and associated with 3 X.Y. Radio at 163 Spring Street, Melbourne, Australia, if living at the date of my death the sum of Fifty Thousand Dollars (Canadian) $50,000.00; PROVIDED that if the said John Douglas Wharton Ford shall not survive me the said fund shall be paid over to the National Trust Company of Australia to be dealt with in the interests of the widow and children in such a way as the said National Trust Company may consider equitable and desirable.

[Page 844]

The testator never made these changes, although he executed a number of codicils.

Several friends and business acquaintances testified at trial as to conversations with the testator from 1950 on, in which he remarked upon the legitimacy of the son. Mrs. Baddeley, a long-time friend who spent every Saturday with the testator, recalled only one occasion when the question was raised, and then:

he simply said that he didn’t think he was his son.

Mr. Baird, the testator’s broker from 1947 to 1963, was in communication daily with him and visited the testator’s home frequently on social occasions. He recalled only two instances when the testator commented on the son’s legitimacy. The testator once said to him:

Bob, you know, I have some doubt whether he is my son.

On the other occasion, Mr. Baird recalled the conversation as:

he was doubtful whether this man in Australia was his son.

Mr. and Mrs. Mackay knew the testator well, visiting him socially on many occasions. Mr. Mackay recalled the testator mentioning that:

his son was living in Australia. I could have interpreted it as his son was just down the street. There was nothing derogatory.

When asked if the testator had ever questioned the legitimacy of his son, Mr. Mackay replied:

In any conversation that we had along those lines, he referred that (sic) my son.

Mrs. Mackay recalled the testator showing her a picture of his wife and son, and saying

That is my wife and son, the son whose legitimacy I question.

[Page 845]

She then expressed her impression of the testator’s comments:

But his words about his wife and son seemed to be derived from bitterness. He felt and I felt that—deep down that he knew this was his son.

Mr. Phipps, the manager of The Royal Trust Company, had known the testator since 1933 and had continuous dealings with him both in a business way and as a friend from 1946 until the final years of the testator’s life. In particular, he worked with the testator on the preparation of the 1958 will for over two years. His evidence reads:

Q. Do you recall how much of that statement the testator conceded to you about June of 1956?

A. It would merely be that he at that time had doubts as to whether or not he was the father of John Ford. The explanation would have come when he ruled out the words “my son” in one of those drafts.

. . .

Q… you mean to say that the testator never did even at any time until his death state to you that he never acknowledged John?

A. Oh, he stated to me that he wasn’t sure whether he was John’s father. But he never said to me: “I have never acknowledged him.”

Mr. Baker, the testator’s solicitor, prepared the last two drafts and the will in final form. He predeceased the testator but a memorandum of instructions in Mr. Baker’s handwriting, written prior to preparing the draft dated October 18, 1956, contained the following comments:

“have a son—if he is mine,” and

“Third trip to Australia was after confession, reconciliation and birth of son whom I never acknowledged. He was born after the return from Australia. I think someone else was the father although I had intercourse with her after the confession.”

All this evidence shows the testator merely had some doubt as to the son’s legitimacy. At no

[Page 846]

time did he state that John Douglas Wharton Ford was illegitimate. The only evidence which could be so construed is the comment “whom I never acknowledged” in Mr. Baker’s memorandum, as it is clear that the testator had acknowledged the son after birth and in the 1933 will. However, the note “have a son—if he is mine” in the same memorandum expresses only doubt. In the draft will prepared from these notes, the reference to “my son” was used, although later crossed out by the testator. This usage is inconsistent with the respondent’s interpretation of “whom I never acknowledged,” and when viewed along with all other evidence on this point, can only support the view that the testator had some doubt.

The Court of Appeal held that the evidence as to the existence of an insane or psychotic delusion was sufficient, and made particular reference to the one phrase “whom I never acknowledged.” The trial judge was of the opinion that the proof was insufficient, and after reviewing all the evidence, quoted Mrs. Mackay’s comments again and stated:

Now that answer appears to be the key to the matter. The knowledge was there of the actual truth, viz. the legitimacy, but the bitterness was still there.

I am in complete agreement with this view of the evidence.

Testamentary capacity and competence in general was attacked at trial. However, all allegations raised in opposition to the granting of probate of the 1958 will were dismissed by the trial judge, excepting the existence of an insane delusion as to the legitimacy of the son. This was based on evidence which showed that the testator had no mental weakness prior to 1965, that his memory was excellent until 1963 or 1964, and that he was astute in business deals and in making numerous amendments to the 1958 will.

[Page 847]

These findings were affirmed on appeal, but the Court of Appeal substituted its opinion for that of the trial judge on the issue of the existence of a delusion.

The propounder of a will must prove by a preponderance of evidence that the testator was competent in every respect, and this includes negativing the existence of any insane delusions. On a consideration of all the evidence and in the light of dealing with an otherwise thoroughly competent testator, the trial judge rejected the contention that a delusion existed. He found that the testator really believed the son to be legitimate, even though he expressed doubt. Although the 1933 will was largely in the son’s favour, a separation for 31 years prior to the 1958 will and the reception of bad reports about his son were sufficient reason for a sane testator to change his will. Furthermore, a legacy of $50,000 was inconsistent with a testator having a poisoned mind resulting in the complete rejection of his son, and consistent only with belief in his legitimacy or, at most, doubt. Whether the testator’s suspicions were reasonable or not, they were such as a sane man could hold.

Throughout most of the son’s life, father and son disregarded each other. The testator’s wife undoubtedly played a major role in keeping them apart and in monitoring information concerning each of them. However, by the 1950’s, father and son were strangers, and the father said so in very plain terms when he rejected the son’s suggestion of a meeting. They would not have known each other had they met. What remained then was the bare fact of paternity. Whether the evidence shows merely an indifference to the son or, at most a doubt as to legitimacy, this is not sufficient to establish a delusion, much less an insane delusion which motivated the testator to change his will.

[Page 848]

I would allow the appeal and restore the judgment at trial. As to costs, I would preserve the order made at trial and in the Court of Appeal. In this Court I would order that the costs of all parties to the appeal be payable out of the estate, those of the executor as between solicitor and client.

Appeal allowed with costs of all parties payable out of the estate.

Solicitors for the appellant: Crease and Company, Victoria.

Solicitors for the respondent, John Douglas Wharton Ford: Cameron & Cameron, Victoria.

Solicitors for the respondent, Christ Church Cathedral Buildings Limited: Harmon and Company, Victoria.