Gair v Bowers

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.