In Re Donohoe

[1987] TASSC 59

TASSC A55/1987

CITATION:In re Donohoe  [1987] TASSC 59; A55/1987

PARTIES:DONOHOE, TREVOR THOMAS

v
  DONOHOE, TRACEY JANE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
FILE NO/S:  M 408/1987
DELIVERED ON:  29 October 1987
JUDGMENT OF:  Neasey J

Judgment Number:  A55/1987
Number of paragraphs:  28

Serial No. 55/1987

List “A”

File No. M408/1987

IN RE DONOHOE: TREVOR THOMAS DONOHOE & ANOR v TRACEY JANE DONOHOE & ORS

REASONS FOR JUDGMENT  NEASEY J

29 October 1987

1. The applicants are co–executors of the will of their late mother, Elsie Myra Donohoe, to whom probate of her will was granted in this court on 23 December 1986. Their application is that probate of the will should be revoked. The testatrix was 84 years of age when the will was executed, and there is no suggestion of want of capacity. The applicant, Trevor Thomas Donohoe, has filed an affidavit in which he deposes as follows. In about 1980, his mother (“the testatrix”) showed him and his brother and co–executor, Donald, the contents of her will dated 24 October of that year, and discussed the arrangements she had made therein that her house at 51 Queen Street, Sandy Bay, should be given to Donald, subject to his paying one third of its value to Trevor. Trevor became concerned about the provision made for him. At that time he was the recipient of a Social Security pension known as a “Carer‘s pension”, because his wife was suffering from an illness which required that she have full–time care, and he had resigned his position at the Cascade Brewery for that purpose. The pension was means tested and he had become concerned that he would lose some of it unless the will was changed.

1. Trevor Donohoe further states in his affidavit:–

“5. In late 1985 I spoke to Mr Badenach (Senior) at Murdoch, Clarke, Cosgrove and Drake. The Will was kept there. I mentioned the problem with my pension and asked if it was possible to substitute the children for myself as beneficiaries under the Will. He said that that would be all right. He said he would make out a codicil and that I would arrange for my mother to come in and sign it.

6.  At the time I had the discussion with Mr Badenach (Senior) I had not discussed the change in the Will with my mother, but I had discussed it at length with my brother Donald and sisters Fay Hale and Gladys Allwright.

7.  Sometime later I telephoned Mr Badenach (Senior) and enquired whether the documentation was ready. He said that it was here and to bring my mother in whenever was convenient. We arranged a time for the morning of Wednesday, 9th November, 1985.

8.  I discussed the matter with my mother prior to 9th November, 1985. I said words to the effect:

‘If I have a lot of money I will lose my pension. Would it be OK if the money went to my three children rather than to me? They will get it in the end anyway.’

My mother said that she thought that was all right and that it was a good idea. I can’t recall whether during the conversation I mentioned a codicil to the Will would be required. I can recall that I did not say that a new Will would be signed. At all times up until I arrived at Murdoch, Clarke, Cosgrove and Drake on 9th November, 1985 I expected that the document prepared would be a codicil.

9.  At about the same time I telephoned my sister Fay Hale. I knew that she took my mother out every Wednesday morning. I asked her if she could call in at Murdoch, Clarke, Cosgrove and Drake on that morning and meet me in the car park.

10. I arrived at the car park at about 11.00 o’clock. Shortly after that Mrs Hale arrived with my mother. I went over to their car and said hello. I then went inside and told Mr Badenach (Senior) that my mother was there. He said he would come out in a moment.

11. I went back to the car. My mother was seated on the front passenger side. I sat in the back seat.

12. A couple of minutes later Mr Badenach (Senior) came out. The passenger side window was wound down. Mr Badenach (Senior) said hello to my mother. He then said words to the effect:

‘I‘ve got some things here for you to sign. Do you know what they are all about?’

‘You’re leaving Trevor‘s share of the house to his children now.’

My mother replied ‘Yes’.

13. I cannot recall whether Mr Badenach (Senior) said to my mother that the document was a Will.

14. Mr Badenach (Senior) did not read the Will over to my mother. She did not attempt to read it. Her eyesight was very bad.

15. Mr Badenach (Senior) handed the document through the window and he pointed to a spot on the Will where he asked my mother to sign. Mr Badenach (Senior) also said to my sister Fay that she could guide my mother‘s hand. Fay said that she thought my mother was doing well herself.

16. After my mother had signed the document Mr Badenach (Senior) and a girl from Murdoch, Clarke, Cosgrove and Drake who had arrived outside shortly after Mr Badenach (Senior) also signed the Will.”

1. Mr. Trevor Donohoe said in oral evidence that Mr Badenach (Senior) had known the testatrix for many years and had arranged for the drawing up of all her four wills including this one. It is common ground that the late Mr Badenach had been managing clerk for the legal firm, Murdoch, Clarke, Cosgrove and Drake, for many years as at the time of execution of the will in question and was a person of wide experience in that occupation.

1. An affidavit has also been filed by Fay Beverley Hale, a daughter of the testatrix, who deposes that in late 1985 her brother Trevor telephoned her and said that their mother was going to have a clause put in her will to substitute Trevor’s children for himself. He explained to her that the reason for this was a concern that he might lose his pension entitlement unless the will was changed. Trevor knew that the deponent was in the habit of taking the testatrix regularly for a car drive on Wednesdays, and he told her that he had arranged an appointment for their mother to sign “the new clause in the will” at Murdoch, Clarke, Cosgrove and Drake. He asked her if she would bring the testatrix to that firm on the following Wednesday morning. On Wednesday 9 November 1985, the deponent collected her mother from a nursing home at Dynnyrne and drove her to the Harrington Street car park of the legal firm. Until she picked her mother up, she had had no discussion with her about her will. On the way to the parking lot she had a conversation with her mother to the following effect:–

“I said we were going to see Mr Badenach (Senior). ............ I said ‘You know what we are going to see Mr Badenach and Trevor for’.

I said ‘It is to put a clause in your Will giving Trevor’s children Trevor’s share in your home. You know how you get your prescriptions for free. Trevor does too. If you leave him money he will not be able to get those things for free. That is why he wants the money to go to the children.’

My mother said ‘Yes, that’s right.’”

1. This affidavit further states that when the deponent and her mother arrived at the car park, her brother Trevor was waiting for them in his car. He came over and said hello, and then went inside to get Mr Badenach. Trevor came out a few minutes later and sat alone in the back seat of the deponent’s car. The testatrix was sitting in the passenger seat on the left. A few minutes later Mr Badenach came out. He stood by the passenger side of the car, and unwound the window. He said to the testatrix words to the following effect “I‘ve got some papers here for you to sign. Do you know about it?” The testatrix replied “Yes”. Mr Badenach did not mention that the document he was asking the testatrix to sign was a will, but the deponent thinks that he said words to the testatrix to the effect, “Trevor’s money is now going to the children”. The deponent is not sure whether Mr Badenach said “Trevor’s money”, or “Trevor’s share”. Mr Badenach then passed the document through the window to the testatrix, who did not attempt to read it, her eyesight being very poor. The testatrix did not ask any questions of Mr Badenach concerning what she was signing. Mr Badenach showed her where to sign by pointing at a place on the document. The deponent then pointed to the same place on the document and said to her mother, “Start here”. Mr Badenach said to the deponent, “You can guide your mother‘s hand if you like”, but the deponent said “No, she is doing a good job herself”. By the time the document had been handed to the testatrix, a girl from inside the legal firm had come out and was standing by the car. After the testatrix had signed the document, Mr Badenach and then the girl also signed. Shortly after, the depondent drove away. She cannot recall any other conversation concerning the document, except that she may have said to her mother, in effect, “That’s done now”.

1. An affidavit was also filed by the person who, with Mr Badenach, witnessed the will. This deponent is Robyn Dazeley, who is and was at the relevant time a clerk at the legal firm in question. On 9 November 1985 Mr Badenach asked her to come to the car park at the Harrington Street end of the firm‘s premises to witness a will. She went to the car park shortly after Mr Badenach, and was standing on the passenger side of a motor car there. The passenger side window was wound down, and in the passenger seat was an elderly lady whom she believed to be the testatrix. Mr Badenach was talking to the testatrix about the will, but the deponent does not recollect what he was saying, except that his conversation with the testatrix appeared to be short. He had then handed the will through the window of the car to the testatrix, and identified with his finger the position where her signature was required. The testatrix did not appear to read the document while the deponent was present, and she had the impression that the testatrix’s sight was poor. The testatrix signed the document in the place identified by Mr Badenach, and then he and the deponent signed as witnesses. Mr Badenach had not read the will out to the testatrix while the deponent was present in the car park.

1. There is in addition an affidavit from a medical practitioner which deposes that the testatrix’s eye vision was very poor at the relevant time, and that she would have been incapable of reading a document such as a will which had been typed in normal size print, either with or without glasses.

1. Finally, an affidavit has been filed by Mr Holt, a partner in the legal firm, Murdoch, Clarke, Cosgrove and Drake, exhibiting the only four scripts of a testamentary kind relating to the testatrix (other than the last will, probate of which is now sought to be revoked) found upon search made in the firm.

1. It is relevant to set out the substance of the four wills. The first was dated 18 May 1965. In it, the testatrix appointed her same two sons, Trevor and Donald Donohoe, to be executors and trustees. She bequeathed to her daughter Fay (the deponent Fay Hale) any money standing to her credit in any bank or banks, after payment thereout of funeral expenses; and then gave the whole of the remainder of her estate both real and personal to the two co–executors in equal shares, subject to their paying to each of her other children living at the time of her death the sum of 150 pounds. One of the witnesses to that will was Mr Badenach.

1. The second of the four wills is dated 10 December 1975. This will revoked all former wills and testamentary dispositions, and again appointed her two sons Trevor and Donald as executors and trustees. The testatrix gave to her son Donald, all her household furniture and effects, and also, her house and land at 51 Queen Street, Sandy Bay, free of duties, but subject to the provision that he pay to her son Trevor “an amount equal to one third of the value of the said house and land situate 51 Queen Street”. She directed that this one third value should be arrived at by averaging the total of two valuations obtained by two independent registered valuers. The testatrix then gave the remainder of her real and personal estate to her trustees to sell and convert into money, with power to postpone, to pay all her debts and the like, and to divide the net residue into three equal parts, and then to pay one such equal part to Fay Beverley Hale and one to Gladys Mary Allwright, and to pay the remaining one third in equal shares to her other three children, Maurice Patrick Donohoe, Keith Edward Donohoe, and Maureen Elsie Jackson.

1. Again, Mr Badenach was a witness of that will.

1. The third will was dated 24 October 1980. The first four clauses, relating to revocation, appointment of executors and trustees, gift of household furniture and effects to Donald, and devise of house and land at 51 Queen Street, Sandy Bay, to Donald, subject to the direction to pay one third of the value, to be ascertained in the same way, to Trevor, were the same as in the previous will. The only alteration was that the testatrix gave the remainder of her real and personal estate, after conversion, with power to postpone, upon trusts altered to some extent from the previous will. These trusts were, after payment of debts, etc, as before, to divide the sum of $2,600 into two equal parts, to pay one such part to Gladys Mary Allwright, and to divide the other part into three equal parts, and to pay one of these to each of her other three children. The testatrix then provided that the remainder of her estate after taking out that sum of $2,600 should be divided into three equal parts, one of those paid to Fay Beverley Hale, one to Gladys Mary Allwright, and the remaining one third part itself divided into three, and one each of such three equal parts to go to the same other three children, Maurice, Keith and Maureen. Mr Badenach was not a witness to that will, but he arranged for its preparation.

1. Then in about 1985, according to the affidavit of Trevor Donohoe above referred to, he discussed with his mother his request that the one third share in the value of the house and land at 51 Queen Street which he was to be paid by his brother Donald under the 1980 will should go instead to his three children, Tracey, Scott and Lisa. This is the only change made in the 1985 will, from the 1980 will. Amongst the papers exhibited by Mr Holt’s affidavit is an unexecuted codicil with the date blank but “1985” typed in, which achieves the requested alteration, except that in the codicil the division of the one third value of the house property between the three said grandchildren of the testatrix is expressed to go to them on their respectively attaining the age of 18 years; whereas in the will, the provision is that it should go upon the youngest of them attaining the age of 25 years. Apparently no reason is known why the codicil was not executed, or why that change was made, but it does not follow that the change was made by Mr Badenach without authority.

1. In this situation I must consider whether this is a proper case for revocation of the probate. Among the circumstances in which proceedings may be commenced for revocation of a grant, whether of probate or of administration with the will annexed, of a will which has been proved in common form, are the following – where it is alleged that the will was not a valid one, where a later will revoking it or a duly executed revocatory instrument has been discovered since the grant was made, where it has been discovered that the deceased married since the date of the will, or where it is alleged that the grant was obtained by a person not entitled – Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, 16th edn, at p380; ibid., at p335; Tristram and Coote’s Probate Practice, 19th edn, Chap. XVII. “..... it is well established that an executor who has an interest in the estate under another will or on intestacy and who has taken probate may institute an action for the revocation of the grant, if he has a reasonable explanation for his action in taking the grant” – ibid., at p.381; and see Williams v Evans [1911] P 175. The present case falls into the first category – ie, revocation is sought on the ground that the will is invalid.

1. The procedural rule governing action for revocation is r.82A of the Probate Rules 1936, as amended in 1965 – see 1982 reprint under the Acts Reprinting Act 1979. That rule provides as follows:–

“82A – (1) Subject to sub–rule (2), where a judge is satisfied upon summons supported by an affidavit that a grant should be amended or revoked, he may make an order accordingly.

(2) Notwithstanding sub–rule (1), except in special circumstances at the discretion of a judge, no grant shall be amended or revoked except on the application or with the consent of the person to whom the grant was made.”

1. In support of the application, counsel for the applicants cited Tyrrell v Painton & Anor [1894] P 151, and particularly the passage in the judgment of Lindley LJ at p157, in which his Lordship said:–

“The rule in Barry v Butlin 2 Moo PC 480, Fulton v Andrew Law Rep HL 448, and Brown v Fisher 63 LT 465 is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only when this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.”

That part of the rule in Barry v Butlin to which Lindley LJ referred is, as his Lordship said, one which “extends to all cases in which circumstances exist which excite the suspicion of the Court”, Tyrrell v Painton being an example.

1. But in the ordinary case of a will drawn in circumstances which are not suspicious, the court will assume knowledge of and assent to the contents from proof of capacity, and the fact of execution, unless there is evidence to show otherwise – see Barry v Butlin (supra) 12 ER 1089, per Parke B at p1091.

1. Theobald on Wills, 13th edn, para 274, states the general rule thus:–

“If a will purports to be properly executed and attested, and there is no doubt that it is the testator’s will, the court will assume that it was properly executed and attested, though the evidence of the attesting witnesses as to the execution may not be satisfactory. ........... This doctrine of course, does not apply if the recollection of the attesting witnesses as to some defect in execution is clear.”

In the same work, in relation to knowledge of contents as a requisite for a valid will, the following is said:–

“No will can be valid of which the testator does not know and approve the contents. A testator cannot, therefore, delegate his testamentary power to another person; that is to say, he cannot adopt and execute a will made for him without knowing its contents. ....................................

A will prepared in accordance with the testator‘s instructions is valid, though at the time of execution the testator remembers only that he has given instructions and believes the will to be in accordance with them. This principle must, however, be applied with caution when the testator did not instruct his solicitor personally but only through an intermediary”. Ibid., at para 111.

1. Much depends upon the circumstances in which the will is prepared and executed. The court may be satisfied that the testator knew and approved the contents of a will even though it was not read by or read over to him immediately or shortly before he executed it, or even where the testator may not have had the contents of the will present to his mind at the time he executed it. Such a case is Parker and Anor v Felgate and Tilly (1883) 8 PD 171, in which a testatrix affected with Bright’s disease gave instructions to her solicitor as to making her will. The solicitor prepared the will strictly in accordance with the instructions, but the testatrix had lapsed into a coma when it was brought to her for execution. There was evidence, partly conflicting, as to whether the testatrix was sufficiently conscious of what she was doing when she signed it, but the preponderance of the evidence indicated that she was. The case was before a jury, and Sir J Hannen, President of the Court, in the course of summing up said:–

“This being the material evidence, the law applicable to the case is this: If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out’. Now, I have only put into language that which flashes across the mind without being expressed in words. Do you believe that she was so far capable of understanding what was going on?”

His Lordship also told the jury there were two other states of mind which would be adequate for validity. One was, if the testatrix was in a condition to answer intelligently, “yes”, to questions putting to her whether she wished to do this or that, in disposing of her assets. A third state of mind which was said to be sufficient was where “a person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it.”

1. The correctness of Parker v. Felgate was accepted by the Judicial Committee of the Privy Council in Perera v Perera [1901] AC 354, at 361, where the third state of mind above set out was cited specifically. It was again cited with approval by Devlin J (as he was then) in In the Estate of Wallace Dec‘d – Solicitor of the Duchy of Cornwall v Batten & Anor. [1952] 2 TLR 925 at 930–931. That was a case in which the testator was too ill at the time he executed the will to appreciate and understand its contents at that time, but the court accepted that he understood that the paper he was executing carried into effect a document which he had himself written 24 hours’ earlier in which he stated ‘his last wish’. The court held the will to be valid.

1. In a later case decided by the Judicial Committee, Battan Singh v Amirchand [1947] AC 173, their Lordships said that:–

“The principle enunciated in Parker v Felgate should be applied with the greatest caution and reserve where the testator does not himself give instructions to the solicitor who draws the will, but to a lay intermediary who repeats them to the solicitor. The opportunities for error in transmission and of misunderstanding and of deception in such a situation are obvious, and the court ought to be strictly satisfied that there is no ground for suspicion, and that the instructions given to the intermediary were unambiguous and clearly understood, faithfully reported by him and rightfully apprehended by the solicitor, before making any presumption in favour of the validity” (supra, at p169).

That was a case, it may be added, where the circumstances in which the will was drawn and executed were, as their Lordships said, such as to give “reason for the gravest suspicion”. It was the situation in the present matter, according to the evidence, that the testatrix’s instructions were relayed by her son, the applicant Trevor Donohoe, to Mr Badenach Senior at the lawyers’ office, and so the proposition stated by their Lordships in Batten Singh’s case on the face of it applies. I shall refer to that matter again later.

1. The applicants laid some stress in this case upon the fact that the testatrix’s sight was very defective at the time of execution of the will, and clearly she did not and could not have read the will herself, and it was not read over to her. As to a blind testator, or one of defective sight who cannot read the will, several cases were cited. In The Will of Amies 4 Arg LR 244, was one in which a testator who was partially blind and physically weak gave instructions to his intended executor for the drawing up of a will. The executor, who apparently was not a solicitor, wrote out a will exactly in accordance with the instructions given him by the testator, by copying from another document and making one alteration. The document from which the will was copied was carefully read over and explained to the testator on the day on which the latter affixed his mark, but this was not done in the presence of the attesting witnesses, at the wish of the testator. Hood J said:–

“I think the principle is that the testator must know what is in the will. He may know that by reading the will, or, if he cannot do that, by having it read over to him, or by being told what it contains. If he is told that by having the previous copy brought to him and then having it read over, he does know what is in the will.”

Probate was granted. In the case, In the Estate of Sellwood, Deceased; Heynes v Sellwood, The Solicitors’ Journal, vol 108, 1964, Part 1, an aged testatrix, who was blind and bed–ridden, executed a will by affixing her mark. The will had been prepared by a solicitor, and contained an attestation clause which read, ‘signed by the said Beatrice Sellwood with her mark as and for her last will and testatment after the same had first been read aloud to her (she being unable to read by reason of blindness) when she appeared fully to understand and approve the same and signified her understanding and approval thereof in the presence of us both being present”, etc That was held to be a valid will, apparently by reason of the form of the attestation clause. The report is very short, and does not say whether or not the will was read over to the testatrix. These cases are perfectly understandable in their circumstances, but they do not lay down any general rule that a will executed by a person who is blind or unable to read it at the time it is executed cannot be valid unless it is read over to him or has a special attestation clause.

1. Mr Pickard, of counsel for the first three respondents, who are the infant children of the applicant Trevor Donohoe, who stand to lose their interest if the application for revocation succeeds and an earlier will is propounded, in his careful argument submitted on their behalf, also drew my attention to Christian v Intsiful [1954] 1 WLR., a case from the West African Gold Coast heard by the Judicial Committee of the Privy Council. It concerned a testator with defective eyesight, who handed a document to a person who had been a solicitor’s clerk, who at the testator’s direction typed it out for him. The document was then signed by the testator and witnessed as his will without it having been read over to him. The will was elaborate, leaving various sums of money to a large number of relatives and friends of the deceased. The evidence did not establish that the solicitor’s clerk had any detailed knowledge of the testator’s relationships and friendships, or that the testator was incapable of reading the document. The matter was, however, governed by an Ordinance which provided that “where the testator was blind or illiterate, the court shall not grant probate of the will, or administration with the will annexed, unless the court is first satisfied, by proof or by what appears on the face of the will, that the will was read over to the deceased before its execution, or that he had at that time knowledge of its contents”.

1. The Judicial Committee held that it if could be plainly shown that the testator was incapable of reading, that would be sufficient to prove that he was “blind” within the context of the Ordinance; but even assuming that he was blind, the court in ascertaining whether it was satisfied that the testator had “knowledge of its contents” was entitled to take into account the elaborate nature of the contents of the will, and that only a person intimately acquainted with the testator’s life could possibly have drawn it up. The will was held valid. The circumstances of the case are set out fully by their Lordships in their opinion, and obviously those circumstances played a major part in their decision, being sufficient to overweight the fact that the testator was virtually blind.

1. In the present application, it is also proper that I should consider and take into account the circumstances of the case, in order to consider the basic question, whether the testatrix knew and approved the contents of the will which she executed on 9 November 1985. I accept, of course, that the will was not read over to her before she executed it, and that she did not read it. However, the evidence which I have earlier set out shows that the will is the fourth of a series which all deal with the same subject matter, and which show a progression in her thinking as to the disposition of her main assets. The first such will was made 20 years before the last, and it is a reasonable assumption and strong probability that the testatrix had turned her mind to the subject on many occasions over the period, and was well aware throughout of what she wanted to do. The relative complexity of the provision concerning the disposition of the funds resulting from sale, calling in and conversion of the residue, a provision repeated with some variations in the last three of those wills, demonstrates clearly that the testatrix must have devoted considerable thought from time to time about those dispositions.

1. Furthermore, the evidence shows that Mr Badenach Senior, a very experienced managing clerk, had dealt with the testatrix in relation to her will on all four occasions over that period of 20 years. Again, it is a fair assumption that the provisions of the testatrix‘s will would be quite familiar to Mr Badenach when he turned his mind to them, since the occasion of the execution of the last will was only one of a series of transactions he had had with the testatrix concerning her will. Mr Trevor Donohoe’s evidence shows that his mother approved the single change in the provisions of the will which he requested, and her authority to him to transmit those instructions to Mr Badenach can scarcely be doubted. The alteration which the latter caused to be made in the wording of the will was in accordance with the testatrix’s wish, except that the provision about the benefit accruing when the youngest of the children attained 25 years, as distinct from the earlier provision contained in the unexecuted codicil, is not explained by the evidence. It is a reasonable assumption, however, that the change was deliberate, and authority for it had in some way been conveyed by the testatrix to Mr Badenach. There is nothing of a suspicious nature in the circumstances in which any of these wills was drawn and executed, and every reason why the presumption of regularity should apply to the one in question. In any event, if it could be shown that the provision concerning the attainment of 25 years was extraneous or mistaken or not in accordance with the testatrix’s intention, the remainder of the will could be held to be valid without it – Theobald (supra) at p111; Re Morris [1970] 2 WLR 865.

1. Finally, that which was said between the testatrix and Mr Badenach immediately before the will was executed, according to para 12 of Mr. Donohoe’s affidavit, accords with the inference that the testatrix understood the alteration she was making in the will, and understood that the remainder of it would be in accordance with the previous will.

1. Having regard to all of these circumstances, the conclusion seems to me to be inevitable that the testatrix did know and approve the contents of her will at the time she executed it, notwithstanding that it was not read over to her and she did not read it; and that a case has not been made out that the will is invalid, or that probate of it should be revoked.