H. C. oi' A. lo conclusion, after a dreadful incident of a most extraordinary description on 13tli August 1948, that she would be incapable of enduring such conduct any longer and to have determined finally, and I think conclusively, that the relationship between them had to end. The only thing that appears to be remarkable to me is that she did not come to that conclusion years before.
However, in questions of constructive desertion it is necesssary to remember that the desertion depends on a factum and an animus, to use the terms which are now more fashionable than English M'ords. The factum means the physical separation and the animus the intention of the deserting party. The physical separation in this case must probably be regarded as her act in the end, although on 13th August, it was he who actually separated himself from her. The question then is his intention. Now this was a subject with which the Court dealt quite recently in the case of Baily v. BaiJy (1). The Court consisted of }Yehh and FuJlayar JJ. and myself. After a great deal of consideration we formulated what we thought was the conclusion which the cases in this Court, in common with the cases in the United Kingdom and those in the various States of Australia, established and it was formulated in very brief terms : “ The cases seem to show that what must be proved is either an actual intention to bring about a rupture of the matrimonial relation, or an intention to persist in a course of conduct which any reasonal)le person would regard as calculated to bring al)Out such a rupture ’’ (2). Lotre found without any hesitation that there was in this case an intention to persist in a course of conduct which any reasonable person would regard as calculated to bring about such a rupture. It is suggested, however, that such a formulation of the criterion is inconsistent with that which the Court of A])peal has rec’cntlv expressed m the case of Bartholomew v. Bartholomew (3). 1 am by no means prepared to concede that there is such an inconsistency. The two ways of expressing the test are not likely to produce any difference in practical result. Here what the facts suggest is a very general intention to persist in a course of conduct completely incon sistent with the maintenance of any matrimonial rehitionslii]3. And as pointed out in the course of argument, it is not easy to draw a line between an intention to destroy a thing and an intention to take a course completely inconsistent with its existence. Actually the argument advanced in the present case is that the appellant, the respondent in the suit, never desired that his wife should leave
(1) (1952) 86 C.L.R. 424.(3) (1952) 2 All E.R. 1035.
(2) (1952) 86 C.L.R., at pp. 426, 427.
him, l)ut that he was to a great extent the victim of his own nature and of his…
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 Worth v Clasohm
Sign in free to access the full text
Details
AGLC
Worth v Clasohm [1952] HCA 67
Case
[1952] HCA 67
Decision Date
CaseChat Overview and Summary
The appellant, Frank Lindsey Worth, sought to establish the validity of a will executed by the deceased, Mary Jane Worth. The respondents, the deceased's brothers and beneficiaries in the event of intestacy, alleged the will was not duly executed and that the deceased lacked testamentary capacity at the time of its execution. They counterclaimed for the will to be pronounced against and for letters of administration to be granted. The matter came before the High Court on appeal from the Supreme Court of South Australia.
The central legal issue was whether the testatrix possessed the requisite soundness of mind, memory, and understanding to execute a valid will. Specifically, the court had to determine if the testatrix suffered from senile degeneration and delusions regarding food poisoning, and if these conditions, if present, rendered her incapable of forming the intention to make the will. The court also considered the burden of proof in cases where testamentary capacity is questioned, particularly when the propounder of the will is also a beneficiary and prepared the document.
The High Court found that while the trial judge had correctly identified the need for vigilant examination of evidence when doubt is raised about testamentary capacity, his conclusion that the plaintiff had not discharged the onus was not supported. The court noted that the criminal standard of proof does not apply, and a residual doubt is insufficient to defeat a will unless it is substantial enough to preclude belief in the testatrix's sound mind. The court reviewed the evidence of the testatrix's multiple wills prepared over several months, her interactions with solicitors and doctors, and the testimony of witnesses. It found that the evidence of delusions, particularly concerning food poisoning, was not consistently established or demonstrably impactful on her testamentary intentions. The court highlighted that the dispositions in the will, including substantial legacies to relatives of her late husband and a significant residue to the plaintiff, were not inherently indicative of incapacity, especially given the lack of evidence of any rational reason for the brothers to benefit. The court also found the evidence of the primary witnesses alleging delusions to be unreliable and lacking corroboration regarding the critical period of will execution.
The High Court allowed the appeal, holding that the plaintiff had discharged the onus of proving the testatrix's testamentary capacity. The court found that the evidence did not establish that the testatrix suffered from delusions that affected her mind in relation to her testamentary dispositions. Consequently, the court ordered that the will be admitted to probate.