ON APPEAL FROM THE SUPREME COURT OF Will-Validity-Knowledge and approval of contents-Evidence-Benefits received H. C.
by persons preparing will-Suit for probate-Costs of unsuccessful opposition.
In a suit to obtain probate of a will which was prepared by the plaintiffs, one of whom was a solicitor, and under which both plaintiffs received large benefits,
Held, that, the trial Judge having directed his mind to the question whether, in view of the suspicious circumstances, the plaintiffs had established that the testator knew and approved of the contents of the will of which they claimed a grant of probate, and having found that they had established that fact, and there being evidence to support that finding, his decision in favour of the plaintiffs should not be disturbed.
Held. also, that as the circumstances led reasonably to an investigation and as the fact that those circumstances aroused suspicion was largely due to the conduct of the plaintiffs in not seeing that the testator had independent advice, the defendant should have the costs of her unsuccessful opposition out of the residue in which the plaintiffs alone were interested.
Per Isaacs J.: Propositions of law stated relevant to the proof of a tes. tator's knowledge and approval of the contents of his will.
Decision of the Supremo Court of New South Wales (Harvey J.) varied and
A suit was brought in the Supreme Court in its probate jurisdiction by Arthur John Samuel Austin and Alfred Joseph Morgan claiming a grant of probate to them of the will of Edward Nock, deceased, made on 11th December 1917 and of which they were executors. The defendant, Jessie Emily Nock, the widow of the testator, who had lodged a caveat against the grant of probate to the plaintiffs, by her defence alleged that the will was not duly executed that the testator was not at the date of the will of sound mind, memory and understanding; that the testator did not know and approve of the contents of the will; and 'that the execution of the said alleged will was obtained by the fraud of the plaintiffs and others acting with them in preparing and causing to be prepared in their own favour the said alleged will without properly bringing home to the mind of the testator the effect of his alleged testamentary act."
By the will in question the testator, after a bequest of £100 to the plaintiff Morgan, who was his solicitor, and of his household furniture, &., to his wife, gave, devised and bequeathed his real estate and the rest and residue of his personal estate to his executors and trustees upon trust to pay £4 per week to his wife during her life and after her death to pay £3 per week to his adopted son, Edward Spring Nock, during his life, and after his death upon trust to sell and convert and to divide…
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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AGLC
Nock v Austin [1918] HCA 73
Case
[1918] HCA 73
Decision Date
CaseChat Overview and Summary
This case involved a suit for probate brought by Arthur John Samuel Austin and Alfred Joseph Morgan, the executors and beneficiaries of the will of Edward Nock, deceased. The defendant, Jessie Emily Nock, the testator's widow, opposed the grant of probate, raising several grounds including lack of due execution, lack of testamentary capacity, and that the testator did not know and approve of the will's contents. The fourth ground, alleging fraud in the preparation of the will, was withdrawn at the hearing. The Supreme Court of New South Wales, at first instance, granted probate to the plaintiffs. The defendant appealed this decision to the High Court of Australia.
The primary legal issue before the High Court was whether the testator knew and approved of the contents of the will, given that the will was prepared by one of the executors, Mr. Morgan (a solicitor), and both executors stood to receive substantial benefits under its terms. This circumstance raised a suspicion that required the plaintiffs to affirmatively establish the testator's knowledge and approval. A secondary issue concerned the costs of the unsuccessful opposition, specifically whether the defendant should be awarded her costs out of the estate.
The High Court, in dismissing the appeal on the merits, affirmed the trial judge's finding that the testator knew and approved of the will's contents. The Court acknowledged that the circumstances, particularly the involvement of the beneficiaries in preparing the will, warranted vigilance and a careful examination of the evidence. However, the Court found that the evidence, as accepted by the trial judge who had the advantage of observing the witnesses, sufficiently dispelled any suspicion. The Court applied the legal principle that while the preparation of a will by a beneficiary is a circumstance that should excite suspicion and place the onus on the proponents to prove knowledge and approval, it does not automatically disqualify the beneficiary or invalidate the will if the suspicion is judicially satisfied and removed.
However, the High Court varied the order of the Supreme Court regarding costs. The Court held that the suspicious circumstances, which were largely due to the conduct of the plaintiffs in not ensuring the testator received independent advice, reasonably led to an investigation. Therefore, the defendant was awarded the costs of her unsuccessful opposition out of the residue of the estate, in which the plaintiffs alone were interested. The appeal was dismissed with no order as to the costs of the appeal itself.