A testator instructed his solicitor to prepare a will, which was duly engrossed and left with the testator for execution, and he was instructed as to the proper mode of execution. The document was not found at the testa- tor's death, about 18 years afterwards, and an application was made for probate of a draft of it, which was supported by an affidavit of one of the alleged witnesses (the other being then dead), who swore to facts which if believed would have proved without doubt that the will was duly executed by the testator shortly after he received the engrossment. On the hearing an order nisi for probate, that affidavit was put in evidence, but the deponent being examined riva voce swore that he did not know that the document he signed was a will except from what the other witness had told him some time afterwards that he did not see the testator sign; that he did not see the testator's signature upon the will; and did not know whether the other witness signed or not.
Held, that, it appearing that the statements in the affidavits were made on information and belief, there was no evidence that the will was duly executed, and therefore that probate should not be granted of the draft.
Statements made by a person after the alleged execution of a will by him Atkinson v. Morris, (1897) P. 40. The revocation of a will which has been duly executed will not be established by the execution of a subsequent will which is not produced, unless the latter will is clearly proved to have contained an express revocation of the earlier will or dispositions inconsistent with those in the earlier will.
Cutto v. Gilbert, 9 Moo. P.C.C., 131, followed. Decision of the Supreme Court of Victoria: In re Taylor, (1909) V.L.R., 235; 30 A.L.T., 203, reversed.
APPEALS from the Supreme Court of Victoria.
Arthur Wellesley Taylor died on 27th June 1908 having made a will dated 13th June 1890, as to the due execution of which there was no question, by which he appointed Mackay John Scobie Gair, Robert Blacklock Bowers and John Burgess Mansfield his executors. These executors having applied for probate of the will, caveats against the granting of the probate were lodged by Robert Blacklock Bowers, George Arthur Price, and Alfred Gillman Hall who claimed to be the executors of a will executed by Taylor and dated 17th December 1900, and by John Falconar who claimed to be one of the next of kin of the testator. Two orders nisi were obtained by Gair, Bowers, and Mansfield, one calling upon Bowers, Price and Hall,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Gair v Bowers [1909] HCA 57
Case
[1909] HCA 57
Decision Date
CaseChat Overview and Summary
The case of Gair v Bowers concerned an appeal from the Supreme Court of Victoria regarding the grant of probate for a will. The primary dispute revolved around the validity of a purported will dated 17th December 1900, which was not found at the testator's death. The executors of an earlier, duly executed will dated 13th June 1890, appealed against the grant of probate for the 1900 will. A further appeal was brought by a next of kin who alleged intestacy, arguing that if the 1900 will was validly executed, it revoked the 1890 will, and its subsequent disappearance raised a presumption of revocation.
The central legal issue before the court was whether there was sufficient evidence to prove the due execution of the 1900 will. The proponents of the 1900 will relied on an affidavit sworn by one of the alleged witnesses, Mollison, who later gave contradictory oral evidence. The court was required to determine the weight to be given to Mollison's affidavit in light of his subsequent testimony and other evidence presented. A secondary issue arose concerning the revocation of the 1890 will, specifically whether a later, unproduced will executed in 1901 had revoked the earlier will.
The High Court held that the oral evidence of Mollison, which stated he did not know the document was a will, did not see the testator sign, and was unsure if the other witness signed, was credible. The court found that Mollison's earlier affidavit contained statements made on information and belief, and that evidence of prior inconsistent statements was only admissible to discredit his testimony, not to prove the facts asserted. Consequently, there was no direct evidence of the due execution of the 1900 will. Regarding the alleged 1901 will, while its execution was suggested by circumstantial evidence, there was no proof of its contents, and therefore no evidence that it contained an express revocation clause or dispositions inconsistent with the 1890 will.
The High Court reversed the decision of the Supreme Court of Victoria. It concluded that there was no sufficient evidence to establish the due execution of the 1900 will, and therefore probate could not be granted for its draft. Furthermore, as there was no evidence of the contents of the 1901 will, it could not be established that it revoked the 1890 will. The court ordered that probate should be granted of the will dated 13th June 1890.