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Lippe v Hedderwick

Lippe v Hedderwick

Case [1922] HCA 44 24 October 1922

Statutory Interpretation

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31 CLR 148

HEDDERWICK

RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF Will-Revocation-Lost will-Presumption of destruction-Intention to revoke-

Ineffectual new will-Costs of opposing probate-Wills Act 1915 (Vict.) (No. 2749), sec. 18. MELBOURNE,

A testatrix, having duly executed a will and given it to her solicitor, about three months afterwards signed a document, in the form of a will and purport- ing to revoke all other testamentary dispositions, in the presence of one witness, who also signed it, and on the same day she wrote to her solicitor asking him to send her will to her as she wanted to look it over and make some alterations. On the next day a second person signed the document above referred to in her presence as a witness. A few days afterwards the original will was received by the testatrix from her solicitor, and she sent to him the other document with a letter describing it as a " new will." Shortly afterwards she died. The original will could not be found among the effects of the testatrix.

Held, that the proper inference from the facts was that the testatrix had destroyed her original will, not with the intention of revoking it, but in the belief that she had already revoked it by the supposed new will, and therefore that, as that supposed new will was not duly executed, probate was properly granted of a draft of the original will.

Benson v. Benson, (1870) L.R. 2 P. &D., 172, and Perrott v. Perrott, (1811) 14 East, 423, followed.

31 CLR 149

An application for probate of the original will was opposed by the testatrix's husband, who received no benefit under it or under the supposed new will. The trial Judge granted the application, and ordered the husband to pay the costs occasioned by his opposition. On appeal to the High Court,

Held, that, as the cause of the litigation was due to the fault of the testatrix, which justified the husband in putting the executor to proof of the will, he should have been allowed his costs out of the estate, and that in such circum- stances the High Court would review the exercise by the trial Judge of his

McCauley v. McCauley, (1910) 10 C.L.R., 434, applied. Decision of the Supreme Court of Victoria (Irvine C.J.) varied.

APPEAL from the Supreme Court of Victoria.

On 13th February 1921 Isabel Lippe, a married woman whose husband, John Nicholson Lippe, was living apart from her, duly executed a will by which she appointed Mr. Bruce Pitcairn Hedder- wick, a member of the firm of solicitors who acted for her, to be her executor. No benefit was given to her husband by the will. The will was left by Mrs. Lippe with her solicitor. On or before 31st May 1921 Mrs. Lippe prepared or caused to be prepared a document, in the form of a will, purporting to revoke all other testamentary dispositions and to leave all her property to one Charles Ernest Macalister Smith,…

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.

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Details

AGLC: Lippe v Hedderwick [1922] HCA 44
Case: [1922] HCA 44
Decision Date: 24 October 1922

CaseChat Overview and Summary

This appeal concerned the validity of a will and the costs associated with its probate. The testatrix, Isabel Lippe, had executed a valid will in February 1921, leaving it with her solicitor. Subsequently, she signed a document intended as a new will, which purported to revoke all prior testamentary dispositions. This document, however, was not validly executed as a will. Shortly after, the testatrix received her original will back from her solicitor and, a few days later, died. The original will could not be found among her effects. Her husband, John Nicholson Lippe, who received no benefit under either testamentary document, opposed the grant of probate of a draft of the original will.

The High Court was required to determine whether the testatrix had revoked her original will. Specifically, the court had to consider whether the disappearance of the original will, coupled with the execution of the invalid new will, constituted a revocation. The court also had to decide whether the husband, who opposed the grant of probate, should be ordered to pay the costs of the proceedings in the Supreme Court, as determined by the trial judge.

The court reasoned that while the disappearance of a will from a testator's possession typically raises a presumption of revocation, this presumption can be rebutted. In this instance, the evidence indicated that the testatrix believed her original will had been revoked by the invalid new will she had attempted to create. Therefore, any destruction of the original will was likely done under this mistaken belief, rather than with the intention to revoke. Citing cases such as *Benson v. Benson* and *Perrott v. Perrott*, the court held that destruction of a will without the animus revocandi (intention to revoke) does not constitute a valid revocation. Regarding costs, the court found that the testatrix's actions were the cause of the litigation, justifying the husband's opposition. Consequently, the court varied the Supreme Court's order, directing that the husband's costs in the Supreme Court should be paid out of the estate. The appeal was otherwise dismissed, with the husband to pay the costs of the High Court appeal, with a set-off of costs.

Orders