Blundell v Curvers

[1999] NSWCA 421

CITATION:	Blundell v Curvers [1999] NSWCA 421
FILE NUMBER(S):	CA 41025/98
HEARING DATE(S):	04/08/99
JUDGMENT DATE:	18 November 1999
PARTIES :	William Blundell John William Antony Curvers
JUDGMENT OF:	Mason P at 1; Beazley JA at 1; Giles JA at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	115005/97
LOWER COURT JUDICIAL OFFICER:	Windeyer J

COUNSEL:	Appellant: L J Aitkin/ S Kaur-Bains Respondent: D R L Laws
SOLICITORS:	Appellant: Jackson Smith Respondent: Mikelis Strikis
CATCHWORDS:	Execution of Will; Grant of probate in solemn form; certain words excluded; rule in Browne v Dunn; procedural fairness; expert evidence; trial judge's reasoning; suspicious circumstances surrounding Will; remainder of Will valid
CASES CITED:	Browne v Dunn (1893) 6 R 67 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Bulstrode v Trimble [1970] VR 840 Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways (1993) 177 CLR 472 Re Breen [1927] VLR 164 Baker v Butt [1838] 2 Moo PCC 317 Barry v Butlin [1838] 2 Moo PCC 480 Tanner v Public Trustee [1973] 1 NZLR 68
DECISION:	Appeal and Cross-Appeal Dismissed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41025/98
PD 115005/97

MASON P
BEAZLEY JA
GILES JA

Thursday, 18 November 1999


WILLIAM BLUNDELL v JOHN WILLIAM ANTONY CURVERS





FACTS

Probate in solemn form of the will of the deceased, Mrs Germaine Marguerite Marie Francoise Toussaint Curvers, was granted with certain words omitted. The omitted words involved a bequest of a valuable painting to the appellant, a friend of the deceased. The words “free of all duties etc” on page one of the Will were also omitted from Probate.

The Will had been typed by the appellant from handwritten notes, taken by him on three separate occasions whilst visiting the deceased in hospital. The appellant claimed that the Will was read by him to the deceased and signed by her and duly attested. The omitted words were typed in a different pitch to the balance of the Will. There were other irregularities in the typeface of the Will.

The appellant’s evidence was that he had typed the Will in the order in which it appeared on its face.

The question in issue on the appeal was whether the bequest of the painting was in the Will at the time of execution.

On the appeal is was argued that there had been a failure to observe the first rule in Browne v Dunn (1893) 6 R 67, and that the trial judge’s reasoning process was illogical.

The cross-appellant sought an order that the Will not be admitted to probate at all, there being suspicious circumstances surrounding the execution of the Will and the appellant had not discharged the onus on him to dispel those suspicious circumstances.

HELD

On the appeal:

(i) The appellant had been accorded procedural fairness in the hearing, consistent with the first rule in Browne v Dunn . The validity of the bequest of the painting…