Lewis v Balshaw - [1935] HCA 80

[ ] LEWIS BALSHAW

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. H. (`. OF A. W ill-ValidityJurisdiction of New South Wales Court-Foreign domicil-Grant

of probate by Court of domicil-Movable and immovable property in New South Wales-Application in New South Wales for administration with will annexed- SYDNEY,

Caveat-Wills, Probate and Administration Act 1898-1932 (N.S.W.) (No. 13 of Oct. 15,16;

1898-No. 49 of 1932), secs. 44, 46, 47, 72.

A testatrix, who was domiciled in England, died possessed of movable and immovable property in New South Wales. The executor named in the will obtained a grant of probate in common form in England, and, as a person entitled to probate who was out of the jurisdiction, brought a suit in the Supreme Court of New South Wales for the grant to his attorney of administration with the will annexed. The suit was contested by a caveator who claimed that the

Held that the validity of the will as a disposition of immovables and as a title to administer them must be determined independently of the English grant, and that the caveator's objections should therefore be heard and deter- mined upon the merits.

Decision of the Supreme Court of New South Wales (Nicholas J.) reversed.

APPEAL from the Supreme Court of New South Wales.

On 22nd March 1933 probate of the will of Sophia Morwitch was granted by the High Court of Justice in England to William Balshaw, the executor named in the will. At the time of her death in 1933

54 CLR 189

the testatrix was domiciled in England and owned considerable real and personal property in New South Wales. A suit was brought in the probate jurisdiction of the Supreme Court of New South Wales by Balshaw praying the grant of administration, with an exemplified copy of the will annexed, to Perpetual Trustee Co. (Ltd.) of Sydney, New South Wales, Balshaw's attorney, for his use and benefit until he himself applied to become the representative of the testatrix in New South Wales. It was a contested suit. in which the defendant, Henry William Lewis, a caveator, claimed (a) that the will was not properly executed, (b) that the testatrix was not mentally capable of making a will, (c) that she did not know and approve the contents of the will, and (d) that the execution of the will was obtained by the undue influence of certain persons, one of whom was named. None of these issues was raised in England. In the course of his judgment Nicholas J. said that the grant made by the Court of the domicil should be followed in New South Wales in the circumstances of the present case, notwithstanding the existence of immovable as well as movable property among the assets of the testatrix in that State. It had been proved that the formalities of a will of immovables were the same in New South Wales as in the jurisdiction of the principal grant; therefore that grant should be…

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 Lewis v Balshaw

Details

AGLC: Lewis v Balshaw [1935] HCA 80
Case: [1935] HCA 80
Decision Date: 18 December 1935

CaseChat Overview and Summary

This case concerned an appeal from the Supreme Court of New South Wales regarding the administration of the estate of Sophia Morwitch, who was domiciled in England at the time of her death and possessed both movable and immovable property in New South Wales. The executor named in her will had obtained a grant of probate in England. He then sought administration with the will annexed in New South Wales, to be granted to his attorney. This application was contested by a caveator who raised several objections to the validity of the will, including improper execution, lack of mental capacity, lack of knowledge and approval of the contents, and undue influence. The Supreme Court of New South Wales, per Nicholas J., had held that the English grant of probate should be followed, notwithstanding the existence of immovable property in New South Wales, and that the caveator's objections should not be heard.

The legal issues before the High Court of Australia were whether the validity of the will, as it related to immovable property situated in New South Wales, must be determined independently of the English grant of probate, and consequently, whether the caveator's objections should be heard and determined on their merits. The core of the dispute revolved around the principle of whether a grant of probate from the court of the deceased's domicile should be determinative of the validity of a will concerning immovable property located in another jurisdiction.

The High Court held that the validity of a will as a disposition of immovables and as a title to administer them must be determined independently of any grant of probate from the court of the deceased's domicile. The Court reasoned that while a grant of probate from the domicile is generally followed for movable property due to principles of convenience and comity, this does not extend to immovable property. The law governing the title to land is the lex situs, and a foreign court's determination of a will's validity for immovables would usurp the jurisdiction of the situs court. Therefore, the caveator's objections concerning the will's validity in relation to the New South Wales immovables were entitled to be heard and determined on their merits.

The appeal was allowed, the order of the Supreme Court of New South Wales was set aside, and the matter was remitted to that Court for hearing. The respondent was ordered to pay the costs of the appeal and the hearing before Nicholas J.

Orders