McGrath v Cherry

In the case of McGrath v Cherry, the applicant sought a grant of probate in solemn form for the will of the deceased, Mr. McGrath. The defendant, Cherry, had previously raised concerns about Mr. McGrath's state of health at the time he executed the will and alleged that the applicant had exerted improper influence over him. The defendant did not appear in court and presented no evidence to challenge the assertion that the will was duly executed. The primary legal issue before the court was whether the will could be admitted to probate and whether the applicant was entitled to a grant of probate in solemn form.

The court considered the absence of evidence from the defendant and the lack of appearance in court. It found that the onus was on the defendant to provide evidence to support their claims, and the absence of such evidence meant that the applicant's case for a grant of probate was unrebutted. The court also noted the obligations of a caveator who demands that no grant be made without prior notice. If the caveator has knowledge of facts which should have led them to make sufficient inquiries, they may be liable for costs. Here, the defendant's failure to present any evidence meant that they were liable for the costs incurred.

The court concluded that the applicant was entitled to a grant of probate in solemn form. The defendant's failure to appear and present evidence meant that they had no case to answer, and the applicant's application for probate was successful. The court further found that the defendant was liable for the costs of the litigation. The final orders included the grant of probate in solemn form to the applicant and a direction that the defendant pay the applicant's costs of the proceedings.