Tipper v Moore - [1911] HCA 42

MOORE AND ANOTHER

RESPONDENTS. RESPONDENTS,

ON APPEAL FROM THE SUPREME COURT OF Appeal to High Court from Supreme Court of State - Appealable amount-Order 1911.

nisi for probate-Interest of cavealor less than £300-Judiciary Act 1903 (No. 6 of 1903), sec. 35- Will-Testamentary capacity - Delusions. MELBOURNE,

On a rule nisi for probate of a will in respect of property amounting in Sept. 14, 15.

value to over £1,000 it appeared that the interest of the caveator, one of three sons of the testatrix, none of whom took any benefit under the will, would on an intestacy have amounted to less than £300. The Supreme Court having decided in favour of the validity of the will,

Held, that, under sec. 35 (1) of the Judiciary Act 1903, the judgment was one for or in respect of a matter at issue of the value of over £300 and that an appeal by the caveator to the High Court would lie without special leave.

Delusions are only material to the question of testamentary capacity if they are connected with the dispositions made by the will.

Judgment of the Supreme Court of Victoria (Hood J.) affirmed.

APPEAL from the Supreme Court of Victoria.

Catherine Elizabeth Moore, wife of Francis Naughton Moore, died on 10th November 1910 having made a will by which, with the exception of a small annuity and certain clothing and furni- ture to one Agnes Bishop, she devised and bequeathed the whole of her real and personal property to her husband absolutely. She

13 CLR 249

appointed her husband and William Arthur Jones to be her H. C. executors. The executors having applied for probate a caveat was lodged by Thomas Tipper, and on an order nisi being made calling upon the caveator to show cause why probate should not be granted, the caveator stated as the grounds upon which he objected to the will want of testamentary capacity and undue influence exercised by F. N. Moore.

On the hearing of the order nisi before Hood J. it appeared that the testatrix had on 25th June 1865 married one Thomas Tipper by whom she had three sons, of whom Thomas Tipper, the caveator, was the eldest, and all of whom were at different times up to 1876 committed to the care of the Department for Neglected Children. The testatrix lived with one John Carrodus as his wife from about 1876 until about the end of 1902 when Carrodus died.

In support of the allegation of want of testamentary capacity it was alleged that the testatrix suffered from delusions, the nature of which is stated in the judgment of Griffith C.J. hereunder.

Hood J. held that the testatrix had no delusions on the matters referred to and that there had been no undue influence. He therefore made the order absolute with costs.

From this decision the caveator now appealed to the High Court.

In the affidavit of appealable amount it was stated that the total value of the…

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 Tipper v Moore

Details

AGLC: Tipper v Moore [1911] HCA 42
Case: [1911] HCA 42
Decision Date: 15 September 1911

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria concerning the validity of a will. The dispute arose when Thomas Tipper, one of the three sons of the deceased testatrix, Catherine Elizabeth Moore, lodged a caveat against the grant of probate of her will. The will left the bulk of the testatrix's estate, valued at over £1,000, to her husband, with no provision for her sons. Tipper alleged that the testatrix lacked testamentary capacity and that the will was procured by undue influence.

The High Court was required to determine two primary legal issues. Firstly, whether the appeal was competent, specifically whether the matter at issue was of a value exceeding £300, thereby allowing an appeal as of right under section 35 of the Judiciary Act 1903. Secondly, the court had to consider the merits of the appeal, namely whether the testatrix possessed the necessary testamentary capacity and whether the will was invalidated by undue influence.

The court unanimously dismissed the appeal. Regarding the competency of the appeal, the Chief Justice held that the matter at issue was the entire estate, valued at over £300, and therefore the appeal lay as of right. On the merits, the court affirmed the decision of the Supreme Court. The judges found that the alleged delusions of the testatrix were not connected to the dispositions made in her will, and therefore were not material to her testamentary capacity, citing the principle from *Banks v. Goodfellow*. The court also found no evidence of undue influence, noting that the mere fact that the principal beneficiary was the husband was insufficient to establish such a claim. The court concluded that the Supreme Court's findings of fact were warranted by the evidence.

Orders