Healey v Healey - [1912] HCA 41

HEALEY AND OTHERS

RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF Will-Execution-Signature of testator-Forgery-Evidence. Where the alleged signature of a testator to an alleged will was challenged as being a forgery, and the Supreme Court had found that the signature was that of the testator,

Held, on the evidence, Griffith C.J., dubitante, that that finding should not Decision of the Supreme Court of Tasmania affirmed.

APPEAL from the Supreme Court of Tasmania.

Proceedings were instituted in the Supreme Court of Tasmania in its ecclesiastical jurisdiction by Jane Healey citing the five infant children of herself and her husband Daniel Healey, deceased, to show cause why probate of an alleged will of Daniel Healey of which probate had been granted to her as executrix according to the tenor on 2nd March 1903 should not be revoked. Thereafter the proceedings became an action by the five infant children as plaintiffs against Jane Healey as defendant, the plaintiffs alleging that the alleged will was the last will and testament of Daniel Healey, and the defendant alleging that the signature of Daniel Healey to such alleged will was a forgery. The action was heard before the Full Court which found that the will of which probate had been granted on 2nd March 1903 to Jane Healey was the last will and testament of Daniel Healey.

14 CLR 272

From this decision the defendant now by special leave appealed to the High Court.

The facts sufficiently appear in the judgments hereunder. Magennis, for the appellant. Stops, for the respondents. [Counsel referred to Gair v. Bowers 1; Woodward v. Goul- stone 2; Atkinson v. Morris 3 Dearman v. Dearman 4.]

Cur. adv. vult.

GRIFFITH C.J. The question for determination in this case is entirely a question of fact depending upon the credibility of witnesses and not upon a conflict of evidence. The sole question is whether the testimony of witnesses which was accepted by the Supreme Court should be accepted. In form the proceedings were a trial before the Full Court on oral evidence of a claim for revocation of probate of a will. The witnesses called in support of the will were the attesting witnesses, and the Supreme Court, having heard them, accepted their testimony. This Court is, however, not bound by their finding, as was said by Lord Halsbury L.C. in Riekmann v. Thierry 5, quoted by my brother Isaacs in Dearman v. Dearman 6 :- Upon appeal from a Judge where both fact and law are open to appeal, it seems to me that the appellate tribunal is bound to pronounce such judgment as in their view ought to have been pronounced in the Court from which the appeal proceeds, and that it is not within their com- petence to say that they would have given a different judgment if they had been the Judge of first instance, but that because he has pronounced a different judgment they will adhere *to his decision. The judgment to…

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.

Continue reading Healey v Healey

Details

AGLC: Healey v Healey [1912] HCA 41
Case: [1912] HCA 41
Decision Date: 17 June 1912

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Tasmania. The dispute arose from a challenge to the validity of a will purportedly made by Daniel Healey. The appellant, Jane Healey, the widow of the deceased, sought to revoke probate of the will, which had been granted to her as executrix. The primary ground for revocation was that the signature of Daniel Healey on the will was a forgery. The Supreme Court had found the will to be valid, determining that the signature was indeed that of the testator.

The legal issues before the High Court were whether the Supreme Court had erred in its factual determination that the signature on the will was genuine, and consequently, whether probate should have been revoked. The court was required to consider the evidence presented, including expert testimony on handwriting, the testimony of the attesting witnesses, and the circumstances surrounding the alleged execution of the will, particularly the testator's physical condition and the unusual signing location. The court also had to weigh the credibility of witnesses and the weight to be given to the findings of the court of first instance, which had the advantage of observing the witnesses directly.

The High Court, with Griffith C.J. expressing doubt, ultimately affirmed the decision of the Supreme Court. The majority of the court found that while there were significant discrepancies and unusual aspects to the case, including the stark difference between the disputed signature and admitted signatures of the testator, and the implausibility of signing a document against a rough wall, these factors were not sufficient to overturn the findings of the Supreme Court. The court acknowledged the difficulty of assessing witness credibility on appeal but deferred to the primary tribunal's assessment, particularly given the lack of demonstrably impossible physical evidence that would definitively disprove the attesting witnesses' account. The court noted that the proceedings were initiated some years after probate was granted and shortly after the death of a key potential witness, Michael Curtain.

The appeal was dismissed, and the respondents' costs were ordered to be paid out of the estate on a solicitor-client basis.

Orders