Viscount Haldane:-

This is an appeal from the Supreme Court of Canada which reversed the Chief Justice dissenting, a judgment of the Court of King's Bench for the Province of Quebec. That Court, in its turn, had reversed the judgment of the Superior Court for the Province delivered in an action which was brought to set aside a will. The claim was made against the appellant as defendant and was based on the contention that as the appellant who was the husband of the testatrix was the sole beneficiary under the will and had been instrumental in preparing it, the onus lay on him to show that he had not procured its execution by undue influence and misrepresentation, and this onus he had failed to discharge.

Their Lordships feel bound to express their regret at the course which the litigation has taken. The amount of the testatrix's estate is small and the costs of determining the issue raised must be out of all reasonable proportion to the sum at stake. But the judgments given have been successively reversed and there is no course open to this Board but to deal with the matter without regard to consequences.

The respondent, the plaintiff was an unmarried sister of the testatrix. The latter had been married to the appellant for twenty-four years and the husband and wife had lived together through that period in the house of the appellant's father near Montreal. They were married with a contract providing for separation of property under which the surviving spouse would not on intestacy take any interest in the property of the predeceasing spouse, a situation which they had according to the evidence only realized immediately before the death of the wife.

The events which have given rise to the controversy between the parties are shortly as follows : The testatrix was seized with a serious illness on Saturday 1st July, 1911. Doctors who were called in thought her condition one of danger. The trained nurse, who was in attendance finally suggested to the testatrix that she should see the parish priest, and he was summoned accordingly by the husband's father, Joseph Craig. The latter had heard the appellant and the testatrix talking with the idea that the survivor of them would succeed to the property of the other, and having doubts whether they realized that from the nature of their marriage contract this could not be without a will, he spoke first to his son, and then to the priest. The priest after administering the rites of his Church to the testatrix mentioned the point to her, but, according to his evidence without suggesting that she should leave her property to her husband. When the priest had left her, the testatrix told the nurse to ask her husband to come to her room as she had something to say to him. He came and the nurse left the room. According to the husband's testimony, his wife asked him how it was that their affairs were not in order as she had always been told by him and she requested him to get them arranged so that as they had always agreed when she was in health, the property should go to the survivor. The husband then went to his brother, who lived in the house and who was a lawyer. The latter wrote out a will in the following words :-

"Par measure de prudence, et sans me croire nullement dangereusement malade je prends a tout evenement les presentes dispositions : Je donne et legue, sans restrictions a mon epoux Isaie, Craig, tous mes biens tant immeubles que, meubles, saufles cadeaur Qu'il jugera a propos de faire a mes proches comme souvenirs."

The husband read this will to his wife, who asked him, according to his account, if he could do something for her own family, for her father had always asked her to think of these others if it was at all possible, as far as she would like to do so, and she said to him that she would like that he should do this if he could. The husband then went back to his brother and asked him to add a clause to the will. The brother re-drew it in the old terms, but with the following addit