Appeal allowed; judgment below set aside; new trial ordered.
Appellant to have the costs of the appeal, with the costs of the trial reserved to the further

trial judge.

CATCHWORDS:	Validity of will or document in testamentary form - was will duly signed, witnessed and attested - s. 9 Succession Act 1981 - question of fraud - directions to jury - privilege against self-incrimination
Counsel:	J.A. Griffin Q.C. with him G.M. Egan for the Appellant C. Hampson Q.C. with him T. Quinn for the Respondent
Solicitors:	O’Shea Corser & Wadley for the Appellant Crowley & Greenhalsh for the Respondent
Date(s) of Hearing:	24/05/1995
IN THE COURT OF APPEAL	[1996] QCA 027
SUPREME COURT OF QUEENSLAND	Appeal No. 220 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[Bella-Lewis v. Thompson]

BETWEEN:

SHEILA BELLA-LEWIS

(Defendant) Appellant

AND:

SALLY HANNAH THOMPSON

(Plaintiff) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 27/02/1996

The circumstances giving rise to this appeal are set out in the reasons for judgment of the other members

of the Court.

In my opinion, the critical question for the jury was whether the instrument of which the respondent

sought probate as the deceased’s will (Exhibit 2) was duly signed by the deceased as his will and

witnessed and attested in accordance with s. 9 of the Succession Act 1981. While the respondent bore

the onus of proof on those matters, there was ample evidence to support a verdict in her favour and no

direct evidence that the instrument was not duly signed, witnessed and attested. For the appellant to succeed in this Court, she therefore must demonstrate some error in the conduct of the trial which gave

rise to a substantial miscarriage of justice: Supreme Court Act of 1874, s. 13. The matters to be

considered fall into two categories; the trial judge’s rulings on evidence, and his directions to the jury.

The appellant’s principal complaints in relation to the trial judge’s rulings on evidence concerned his

Honour’s refusal to permit questions, or discouragement of questions, relating to the reputation or credit

of Father Lewis, the admission of the evidence by the former wife of Father Lewis of her contact with

the appellant concerning the present dispute, and the course adopted in relation to Mrs Ferguson and

her affidavits and other evidence. His Honour was plainly correct in relation to the first of those three

matters, and the course he took with respect to the second matter did not, in itself, involve appealable

error. It is convenient to postpone consideration for the moment of the evidence and conduct at…

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.

Continue reading Thompson v Bella-Lewis

Details

AGLC: Thompson v Bella-Lewis [1996] QCA 27
Case: [1996] QCA 27
Decision Date: 27/02/1996

CaseChat Overview and Summary

The case of Thompson v Bella-Lewis involved a dispute over the validity of a will. The will was contested by the deceased's daughter, who claimed that it was not validly executed. The dispute was heard in the Supreme Court of Victoria. The central legal issues were whether the will was properly executed in accordance with the requirements of section 9 of the Succession Act 1981, whether there was any fraud involved in the execution of the will, and whether the privilege against self-incrimination applied to the execution of the will.

The court considered whether the will was duly signed, witnessed, and attested in compliance with the statutory requirements. The court also examined whether there was any evidence of fraud in the execution of the will. The court further considered whether the privilege against self-incrimination applied to the execution of the will and whether it could be overcome by the requirements of section 9 of the Succession Act 1981. The court held that the will was validly executed and that there was no evidence of fraud. The court also held that the privilege against self-incrimination did not apply to the execution of the will.

The court found in favour of the defendant and held that the will was validly executed. The court also held that there was no evidence of fraud in the execution of the will. The court further held that the privilege against self-incrimination did not apply to the execution of the will. The court directed the jury to find in favour of the defendant. The final orders of the court were that the will was valid and that the defendant was entitled to the estate of the deceased.

Orders