Cinnamon v The Public Trustee for Tasmania

The applicant, the Public Trustee for Tasmania, sought probate of a document as the last will of Robert Cinnamon. The respondent, David Cinnamon, as the sole next of kin, was cited to attend and support any interest he might have. The document in question comprised a single sheet folded to form four pages. The first page contained a printed will form, filled in with handwritten dispositive clauses, followed by the testator's signature and attesting witnesses. Further dispositive provisions appeared on the third page, with some pencilled alterations present on both pages. The Supreme Court of Tasmania granted probate of the first and third pages, excluding the pencilled alterations. David Cinnamon appealed this decision to the High Court.

The legal issues before the High Court were whether the document, as presented, constituted a valid will, specifically concerning the testator's signature being at the "foot or end" of the will, and whether the dispositive provisions on the third page were validly incorporated into the will. The court also had to consider the effect of the pencilled alterations and additions.

The High Court, in dismissing the appeal, reasoned that the word "over" on the first page, coupled with the continuation of the dispositive clauses on the third page and the attesting witnesses' evidence of seeing names from the third page before signing, indicated the testator's intention to incorporate the third page. This incorporation meant the testator's signature on the first page was considered to be at the foot or end of the entire testamentary disposition. The court applied the principle that where a testator intends to incorporate further writing, even if on a different page or position, and provides a clear indication of this intention, such writing can be considered part of the will, provided it precedes the signature in the intended order of reading. The pencilled alterations were excluded from probate as unattested and likely made after execution, supported by the attesting witnesses' failure to notice them and evidence of a subsequent draft will incorporating these changes.