Lippe v Hedderwick

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 In this instance, the evidence indicated that the testatrix believed her original will had been revoked by the invalid new will she had attempted to create.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.