Lewis v Balshaw

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.