Blundell v Curvers

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 115005/97 LOWER COURT JUDICIAL OFFICER : Windeyer J

COUNSEL : Appellant: L J Aitkin/ S Kaur-Bains Respondent: D R L Laws SOLICITORS : Appellant: Jackson Smith Respondent: Mikelis Strikis CATCHWORDS : Execution of Will; Grant of probate in solemn form; certain words excluded; rule in Browne v Dunn; procedural fairness; expert evidence; trial judge's reasoning; suspicious circumstances surrounding Will; remainder of Will valid Browne v Dunn (1893) 6 R 67 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Bulstrode v Trimble [1970] VR 840 Abalos v Australian Postal Commission (1990) 171 CLR 167 CASES CITED: Devries v Australian National Railways (1993) 177 CLR 472 Re Breen [1927] VLR 164 Baker v Butt [1838] 2 Moo PCC 317 Barry v Butlin [1838] 2 Moo PCC 480 Tanner v Public Trustee [1973] 1 NZLR 68 DECISION : Appeal and Cross-Appeal Dismissed

Probate in solemn form of the will of the deceased, Mrs Germaine Marguerite Marie Francoise Toussaint Curvers, was granted with certain words omitted. The omitted words involved a bequest of a valuable painting to the appellant, a friend of the deceased. The words "free of all duties etc" on page one of the Will were also omitted from Probate.

The Will had been typed by the appellant from handwritten notes, taken by him on three separate occasions whilst visiting the deceased in hospital. The appellant claimed that the Will was read by him to the deceased and signed by her and duly attested. The omitted words were typed in a different pitch to the balance of the Will. There were other irregularities in the typeface of the Will.

The appellant's evidence was that he had typed the Will in the order in which it appeared on its face.

The question in issue on the appeal was whether the bequest of the painting was in the Will at the time of execution.

On the appeal is was argued that there had been a failure to observe the first rule in Browne v Dunn (1893) 6 R 67, and that the trial judge's reasoning process was illogical.

The cross-appellant sought an order that the Will not be admitted to probate at all, there being suspicious circumstances surrounding the execution of the Will and the appellant had not discharged the onus on him to dispel those suspicious circumstances.

(i) The appellant had been accorded procedural fairness in the hearing, consistent with the first rule in Browne v Dunn . The validity of the bequest of the painting and the other words in ten pitch type had been put in issue in the pleadings and there was evidence that went directly to the issue or was related to it. The rule was not offended merely because the appellant had not been asked expressly whether he had typed those words after execution.

(ii) The reasoning process of the trial judge was not flawed. Having rejected the appellant's core evidence as to the order in which he typed the Will, it was open to the trial judge to infer that the words of the bequest were not in the Will at the time the Will was executed. There was other evidence which supported the inference.

(i) The Will, omitting the bequest and other words in ten pitch, should be admitted to probate.

(ii) In this case, there was sufficient evidence to conclude that it was only the words in ten pitch which were attended with suspicion such as to place an onus on the appellant to dispel the suspicion relating to those entries. Once those words were omitted the appellant had otherwise satisfied the onus that the Will was valid.

(iii) No order as to costs. THE SUPREME COURT

1 THE COURT: The trial judge granted probate in solemn form of the Will of the deceased, Germaine Marguerite Marie Francoise Toussaint Curvers, but excluding certain words in the document. The appellant appealed and the respondent cross-appealed. 2 The words omitted were "I give and bequeath to my dear friend William Blundell of the Penthouse 13 Onslow Avenue Elizabeth Bay. New South Wales one oil painting of St Ives by E.P. Fox free of all duties etc" on page one of the Will as well as the words "free of all duties etc" where those words last appear on page one of the Will.

The Proceedings 3 In his statement of claim filed 3 November 1997, the appellant sought probate of the Will of the deceased in solemn form. The respondent is the deceased's husband. The deceased's husband is not a beneficiary under the Will. There is no other known Will. In his defence, the respondent put in issue due execution of the Will in the form propounded. He also put in issue testamentary capacity and alleged undue influence by the appellant. 4 The appellant was successful on all issues at trial except the question whether the bequest to him of the E P Fox painting and the words "free of all duties etc" were in the Will at the time of execution. Save for the purported bequest of the E P Fox painting, no other provision was made for the appellant in the Will. There is no doubt that the painting is of significant value. One estimate given was $100,000. The balance of the estate was estimated to be worth in excess of $250,000.

Issues on the Appeal 5 The appellant sought an order that the Will be admitted to probate including the omitted words. Two issues only were argued on the appeal, First, it was submitted that there had been a failure to observe the first rule in Browne v Dunn (1893) 6 R 67 and that the appellant was thereby denied procedural fairness. Secondly, it was submitted that "as a simple matter of logic" his Honour's reasoning process was flawed. Preparation and Execution of the Will 6 The deceased during her life had been the proprietor of an art gallery in Paddington, an inner Sydney suburb. The appellant was a close and long time friend of the deceased. During the last years of her life the deceased had cancer. She was hospitalised in the weeks immediately before her death and died on 15 April 1997. According to the appellant he took instructions for the Will on three separate occasions at the hospital on 9 and 10 April 1997. He sought clarification of some matters over the telephone on 10 April. He made notes of the instructions at the time they were being given to him by the deceased. He typed the Will on an electric typewriter from the handwritten notes. 7 The handwritten notes made by the appellant ran over eleven pages. They were written using three different black ink ball point pens and at least two different blue ink ballpoint pens as well as pencil. Because of the way in which the notes were maintained it was not possible to determine in what order the notes had been written. As they were not numbered, page numbers C1 - C11 were ascribed to the pages of the notes in the proceedings for the purposes of identification only. The bequest to the appellant of the E P Fox painting appeared in three separate places in the notes - at the bottom of one page (C4) and at the top of two other pages (C6 and C8). 8 The typeface on the Will is in two pitches - ten pitch and twelve pitch. The ten pitch type contains ten characters to the inch and is more widely spaced than the twelve pitch type which has twelve characters to the inch. This is different from computer generated documents where ten pitch is smaller than twelve pitch. 9 There was no dispute that the contested words were typed in ten pitch. The bequest of the E P Fox painting was about three quarters of the way down the first page of the Will, three lines taking up what would otherwise have been a space between two paragraphs. The spaces between paragraphs elsewhere in the Will were of varying sizes, sometimes nearly as large as the space occupied by the bequest. The paragraphs before and after the bequest of the E P Fox painting and the typing on either side of the disputed words "free of all duties etc" appearing were typed in twelve pitch. The margin of the E P Fox bequest was indented further than the margins of the balance of page one of the Will, and its horizontal alignment was different from that of the preceding and following paragraphs. 10 Evidence of the pitch and other irregularities in line spacing and alignment was first given by Gregory Keith Marheine, forensic document examiner, in his affidavit sworn 4 December 1997 and filed 5 December 1997. 11 Mr Marheine was of the opinion that the Will had been prepared in more than one typing session. He explained that by "session" he meant "the document has been moved in and out of the typewriter on several occasions during the typing of the Will". He was unable to say how many sessions were involved or when any typing session occurred. Nor was he able to say what period of time elapsed between each typing session. He concluded that "due to the nature of the document and the disposition of typing, it is not forensically possible to conclude what information was present on the document at the time it was signed by the Testatrix and witnessed". 12 The appellant responded to this evidence in an affidavit sworn 4 February 1998. He stated: "The will was taken out many times by me to check typing or spelling mistakes or to realign and then put back in the typewriter and the mistakes deleted and corrections made. The document took me nearly 3 hours to type which I did by typing with one finger, using the other hand to hold the will form as level as I could in the typewriter. Because of irregularities in margins and spacing the will was moved by hand in the typewriter or completely removed and reinserted as necessary. On a number of occasions I released what I refer to as 'the release spoke' on the right hand side of the typewriter to avoid stress on the machine. The only reason I can attribute to any changes in the settings or pitch as referred to by Mr Marhein is the accidental bumping by me of the pitch change mechanism on the left hand side of the typewriter when I was removing or adjusting the pages in the machine. I was not previously aware of the pitch change mechanism on the machine or indeed the typing term 'pitch' until I read of such things in Mr Marhein's affidavits." (emphasis added). 13 The respondent responded to this evidence by obtaining an expert opinion from George Robert Black, the Marketing Director of the Queensland distributor of the Nakajima AX-240, the brand and model of typewriter upon which the Will was typed. Mr Black had forty one years' experience in servicing, repairing, operating and selling typewriters and other business machines. He was familiar with the AX-240 model. So far as is relevant to the issues here, this typewriter has two salient features. First, it could accept thicker paper than most other typewriters, and was therefore often used for typing on paper such as card material. Secondly, the type pitch selector was a heavily indented sliding switch which made an audible click when moved. 14 Mr Black disputed the appellant's explanation of accidental bumping of the pitch selector because of its construction, its location on the machine and because he was of the opinion that the selector was changed four times within eighteen lines. He said:

"What is required to change the pitch selection is the application of definite pressure to slide the selector forwards or backwards. Simply pushing down on the selector will have no effect on it." 15 Importantly he added: "From my experience with the AX-240, I am of the opinion that it would be virtually impossible to even once, inadvertently or accidently bump the pitch settings and change the settings without knowing that you had done it . It is my opinion that the pressure required to change the pitch selector would have to be a deliberate act of the operator which the operator must have been conscious of. The audible click would also indicate to the operator that the setting had changed." (Emphasis added). 16 He also explained that the pitch selector switch is located approximately twelve inches (thirty centimetres) from where the paper is inserted, so that a person's hand would be nowhere near the switch when removing or inserting paper from or into the typewriter. Mr Black also disputed the likelihood of two other key aspects of the appellant's evidence, namely, that the paper slipped and that it was necessary to remove the paper from the machine to check the spelling. He said that the AX-240 had a particularly good "grab" - better than any other machine he had ever seen so that a large double page document such as the Will here would not slip easily. Further, the construction of the typewriter was such that it was easy to see the type face when the machine was not in operation, so that it would have been unnecessary to remove the paper to check for typing errors and the like as alleged by the appellant. 17 The affidavit evidence to which we have been referring, which was all filed well before the hearing, raised a clear issue, that the words of the bequest to the appellant were not typed at the same time as the balance of the Will, although the time when those words were typed was not defined. 18 It is obvious from the manner in which the oral evidence proceeded that both counsel were clearly seised of the issue. The appellant's counsel took the matter up with the appellant during his evidence-in-chief as follows: Q. Do you have a recollection as to the general manner in which you typed … the will ?

Q. I think you said you typed it over the space of about three hours ?

Q. Did you type it in the order that the words are shown on pages 1 and 2 of the document ?

Q. In particular at any time did you go back and insert words between paragraphs or sentences that you had previously typed ?

A. It was a habit of myself and I have been doing it for years that I lift up the will by releasing the button on the side which means I can lift it up. I would read the text for any spelling mistakes. I would then reinsert by hand, in this case because of the thickness of the paper and I would type "free of all duties whatsoever" if that was the case or what else is there following each paragraph.

Q. If you had to make corrections when would you make them ?

A. After reading each paragraph. There was some I must admit I missed out on, but generally I removed them immediately." (emphasis added) 19 The appellant was cross-examined on the issue as follows: "Q I want to suggest to you, if I may, that specifically the bequest to you in relation to the E P Fox painting was placed on the form of will at a time after the typing of the text on the document that is not highlighted in pink? [the text in pink was the twelve pitch typing] A I don't agree with that, it was all typed in one session, I explained that to you." 20 In cross-examination of Mr Black, counsel for the appellant sought to minimise the impact of his affidavit evidence by seeking to establish that: · the clicking noise which the typewriter made when the selector switch was activated could have been masked by background noise (the appellant's case being that he had the radio on). Mr Black accepted that was possible; · a person could use some of the devices on a typewriter without knowing the effect of the device. Mr Black agreed this was "certainly" the case; · it was common for persons using a typewriter to scroll the paper out sometimes to view the typing, notwithstanding that the typeface could be seen without the necessity of removing the paper from the machine. Mr Black agreed and said it was very obvious that had happened here. He was neither cross-examined nor re-examined as to where on the Will that had happened; · the fact the Will paper was folded could have caused the paper to be held slightly out of alignment. Mr Black agreed that was possible; 21 The issue as to the change in pitch was further raised with Mr Black. The cross-examination was to the following effect: "Q You have expressed an opinion that the change in pitch could not have taken place without the operator being aware that he was changing the type pitch selector? A Yes, I believe that. Q First of all, there is no dispute that the type pitch selector has to be changed each time to get the alteration. Correct? A Sorry? I don't understand what you are saying. Q For there to be that change in the typing, as an obvious lead up the type pitch selector has to be changed? A Yes, sure. Q If it is not done inadvertently, or accidentally, the operator has to be aware that he is changing something on the machine. Correct? A Certainly. Mainly because it requires to be pushed in two different directions."

22 Mr Black's affidavit evidence that it was "virtually impossible" to accidentally knock the pitch selector switch was not challenged. However, Mr Marheine was directly challenged as to his opinion that the Will was not typed in one session. He was asked to concede that "it is not necessary for there to be what you describe as different sessions". He responded: "A The different sessions which I have described in my affidavit are prima facie evidence of the document having been removed from the typewriter and reinserted. Q Isn't it wholly consistent with your findings on different sessions for the platen merely to be released from the line spacing mechanism and for the document and the platen, perhaps, to run freely, using the roller, for there to be the sort of findings with regard to alignment that give rise to your findings of different sessions? A. No. Releasing the platen so it freewheels only accounts for the disparity in the line spacing aspects of the document. The vertical and the horizontal alignment of the typing will not be affected by that. The difference in vertical and horizontal alignment of character is evidence of another aspect of examinations but not the physical movement - the physical release of the document in the machine and the platen or the document being removed by the freewheeling of the platen roller.

23 The other area of relevant cross-examination was in relation to the handwritten notes. There were three entries in relation to the bequest of the E P Fox painting. Each entry appeared either at the top or bottom of the handwritten notes and each was in different coloured ink from the balance of the writing. The appellant's explanation for this was as follows: "Q Are you able to explain why it is that nowhere in the notes in the black pen or the handwriting that makes the bulk of the notes up, is there a reference to a bequest to you? A There is in the gift of E P Fox on the bottom of [the page identified as C4)]. You have already asked me that question. Q You see, I want to suggest to you that C4 is in a different hand to the hand that is immediately above it in terms of the shape of the letters? A Are you suggesting it is in two persons hands, like it is two individuals? Q No, I am not. What I am suggesting to you is it is done not at the same time as the notes that appear immediately above it? A It could be a couple of minutes, I don't know. I used every spare area that I could place down these notations on. [sic] … Q Are you able to explain why in the apparent scheme of the notes, each numbered paragraph deals with a discrete bequest except the bequest to you that is bundled in at the bottom of the bequest to the Cancer Foundation and the Salvation Army? A I see your argument. I can see that whereas there is a splitting of the pencil and pen inscription on the Fox painting between the two pages, I can understand that, yes. Q Are you able to explain in the continuity of the notes why the continuity is broken by one inscription? A Yes. Q And that is the reference to the bequest to you at the bottom of the page? A Well, it may have been in conversation with her, where we started to talk after completing other steps. I put a piece of paper on my lap and I may have slipped it there on the corner and some how the pencil is in there too. So I must have made another query. So it is put in pen and pencil. I tried to explain to you before, I don't take a diary of my notes. I can only try and explain to the best of my worth. … Q Do you say in the continuity of the notes that you have apparently taken notes of gifts and bequests in fairly detailed terms? A Yes. Q For example, if you go back to 3B, the first page, you see that there is a gift to the Cancer Foundation of Australia and the Salvation Army of Australia and it is a pretty substantial gift (C4)?" 24 This last question was disallowed. Counsel for the appellant made a general objection to the line of cross-examination being pursued by counsel for the respondent. His Honour allowed the cross-examination in question "because it went to the issue whether or not the Will signed by the deceased had [the bequest of the E P Fox painting] in it". 25 The cross-examination continued: "Q Are you able to say why the subject matter of the bequest to you has three separate and apparently distinct reference to it in the notes? A I cannot answer that, I don't know how to answer it, it is just there, it is in the notes. I cannot be precise, it is just there at the request of the deceased." 26 At the conclusion of the evidence, the trial judge had before him the appellant's emphatic evidence that he typed the Will in the order in which it appears and that the changes in the type pitch were due to his accidentally knocking the pitch selector button. He also had the expert opinion of Mr Black that that was a virtual impossibility and that of Mr Marheine that the Will was not typed in one session, as he had explained that term. 27 His Honour rejected the appellant's evidence. He posed the question "whether I am satisfied on the balance of probabilities that the words in 10 pitch type on page 1 of the will were on that document when that will was executed by the deceased". After referring to the notes but observing that the bequest of the E P Fox painting was in different pens and in places where it could have been added without difficulty, to some evidence concerning the appellant's knowledge of the existence of the painting and his preparation of the Will himself rather than having it prepared by the deceased solicitor, he said: "The most significant matter, however, is that Mr Blundell was adamant that the will was typed in the order in which the words appear in the one session and I have found that not to be so. If that was not the position then I have come to the conclusion that I am unable to be satisfied on the balance of probabilities that the will, as propounded with all the wording on it, was the will which was signed by the deceased. When the irregular spacing on the rest of the will is taken into account it would I consider have been possible for the gap where the words in 10 pitch are now typed to appear without it appearing to be of significance to the deceased. The document makes perfect sense without the words and disposes of all the estate. In other words the will is complete without the bequest. In general alterations or additions made in a will complete without them are regarded as having been inserted after execution, although this is of less significance when it is not a case of an obvious alteration or interlineation. The [appellant's] evidence was quite clear. It was that the words were typed in the sequence and order they appear on the will and that the will executed was the will propounded. As I do not accept the first assertion I am unable to conclude on the balance of probabilities that the second assertion is correct. I conclude that the words in 10 pitch type should not be admitted to Probate."

That is, his Honour was not satisfied that the bequest to the appellant was in the Will when executed by the deceased; although not expressly so finding, in the circumstances he must have concluded that it was not.

The Rule in Browne v Dunn 28 Counsel for the appellant submitted that the appellant had not been accorded procedural fairness in the hearing, contrary to the rule in Browne v Dunn, because it had not been put to him in clear and unequivocal terms during the course of cross-examination that he had inserted the bequest of the painting to himself after the Will was executed. 29 In Browne v Dunn Lord Herschell identified the obligation of procedural fairness which counsel has when cross-examining a witness whom it is intended to impeach. His Lordship said 70-71: "If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses." 30 However, his Lordship said that there was no obligation to raise such a matter in cross-examination where it is: " … perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. … All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted." 31 Lord Herschell's comments are a statement and explanation of the first rule in Browne v Dunn, described by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 18 as a "rule of practice or procedure, based upon general principles of fairness, which is designed to achieve fairness to witnesses and a fair trial between the parties". Hunt J echoed and expanded upon Lord Hershells' explanation of the need for such a rule of procedural fairness at 16, stating that: " … unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1893) 6 R 67."

See also Bulstrode v Trimble [1970] VR 840 at 846. 32 The trial judge expressly dealt with the failure of counsel for the appellant to cross-examine the appellant as to whether the bequest of the E P Fox painting and the words "free of all duties etc" were in the Will at the time it was executed by the deceased. He said: "I took this matter up with counsel for the defendant, who explained this by saying that he was not able to do so as he did not have sufficient instructions or basis enabling him to suggest that the document was a forgery or to suggest fraud. This explains the non-admission of due execution rather than the denial in the defence. I am by no means certain the allegation could not have been put after the direct challenge to the evidence of the order of typing the words, but nevertheless accept that and the not pleading forgery or fraud as the reason for the lack of cross-examination. Be that as it may, there can be no doubt that this matter was in issue between the parties on the hearing and understood to be and I do not think it could be said fairness required the plaintiff to be given any further opportunity to give any explanation he wished on the assumption I might conclude that the will was not prepared as he stated that it was ." (emphasis added) 33 We agree with his Honour's comments. The rule in Browne v Dunn does not require for its satisfaction the incantation of any particular formula. Provided it was abundantly clear to the appellant that his assertion as to the typing of the Will was being challenged, and he was given the opportunity to refute or explain the evidence which suggested to the contrary, it was not necessary to put to him in direct terms that his evidence was incorrect or false or not as he had said. The validity of the bequest was a central issue in the case. The matter was put in issue on the pleadings. The core dispute on this aspect of the case related to the circumstances in which the appellant inserted the ten pitch words in the Will. We have referred to the pleading and evidence which either went directly to the issue or which related to it, and in particular to the appellant's evidence that he typed the Will in the order in which it appears. The only point in putting these matters in issue was to challenge the validity of the bequest to the appellant on the basis that the words in ten pitch were not in the Will at the time of execution. In our opinion, there was no procedural unfairness to the appellant. 34 Counsel for the appellant recognised that if he was unable to satisfy the Court that there had been procedural unfairness, there was no basis in this case for disturbing his Honour's finding as to the appellant's credit: see Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission, (1993) 177 CLR 472.

Illogicality of the Trial Judge's Reasoning Process 35 Counsel for the appellant submitted his Honour's reasoning process was flawed because it did not follow as a matter of logic from rejection of the appellant's evidence that the words were typed in the sequence and order they appeared in the Will, that the Will was not in its present form when executed by the deceased. Counsel placed considerable emphasis on the use of the word "session" in the evidence. He submitted that it was likely that the appellant was using the word "session" in a different sense from that used by Mr Marheine. Perhaps moving from a submission as to illogicality, he submitted that his Honour's finding that the Will was not typed in one session was founded on a misunderstanding of the appellant's evidence, the appellant having said that he typed it in the one three hour period although taking the Will in and out of the typewriter or moving it around in the typewriter and Mr Marheine having said that it was typed in a number of sessions. 36 We do not consider his Honour's judgment reveals any such misunderstanding. Mr Marheine was very clear as to what he meant by "session" and it was obvious from the appellant's evidence that he was not confused as to what he was being challenged on. His Honour's finding was directed to the appellant's evidence, a session in the sense of the three hour period, not Mr Marheine's evidence. In any event, his Honour's determination was not based on whether there was one or more "sessions" but upon his not accepting the appellant's case that the words in the Will were typed in the sequence in which they appear. That was what mattered, and that was found against the appellant. 37 We do not think that his Honour's reasoning process was erroneous. No doubt the fact that his Honour was not satisfied that the words in the Will were typed in the sequence in which they appear did not inevitably bring lack of satisfaction that the Will executed was the Will propounded, or of itself compel the conclusion that the bequest of the E P Fox painting was not in the Will when executed by the deceased. But there was much more. If the appellant's evidence on the matter was rejected, there was no other evidence of the inclusion of the bequest in the Will; and the circumstances gave a sound foundation for the conclusion that the bequest was put into the Will after it was executed. Contrary to the appellant's submission, the fact that the appellant knew of the existence of the painting and prepared the Will himself rather than having it prepared by the deceased's solicitor were relevant matters in the process of inference - not logical deduction - open to his Honour. We see no ground to interfere with his Honour's conclusion.

Issues on the Cross-Appeal 38 The respondent sought an order that the Will not be admitted to probate at all. Execution of the Will and testamentary capacity were proved to the satisfaction of the trial judge and were not challenged on appeal. The respondent's challenge was to whether the deceased knew and approved the contents of the Will. He submitted that where, as here, the circumstances surrounding the making of the Will were suspicious, the appellant, as the propounder of the Will, bore the onus of dispelling the suspicious circumstances and that he had not discharged that onus. 39 The suspicious circumstances alleged were: (i) that the deceased did not have the physical capacity to read the Will as asserted by the appellant; (ii) the presence of interlineations and the misalignments generally in the Will; (iii) the fact there were differences between the notes and the Will; and (iv) that the Will as propounded was not consistent with the testamentary wishes of the deceased as expressed by her both throughout her life and in the days before she died. As well, it was submitted that the insertion of the bequest of the E P Fox painting, for present purposes taken to have been after the execution of the Will by the deceased, coloured the other circumstances surrounding its making and the validity of the whole of the Will. 40 The respondent relied principally on In Re Breen [1927] VLR 164. In that case, the deceased left nearly the whole of his estate to the proponent of the Will, a priest (who was also named as executor) and the Church. Irvine CJ, adopting a passage from Baker v Butt [1838] 2 Moo PCC 317 at 321, stated at 166 that the principle to be applied in such circumstances was: "If the person benefited by a will himself writes or procures it to be written, the will is not void, as it would have been by the civil law; but the circumstance forms a just ground of suspicion, and calls upon the Court to be vigilant and jealous, and requires clear and satisfactory proof that the instrument contains the real intention of the testator." 41 Irvine CJ (at 166-167) referred to Parke B's statement of the principle in Barry v Butlin [1838] 2 Moo PCC 480 at 482-3 that: "These rules are two: the first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does express the true will of the deceased." 42 Irvine CJ commented that Barry v Butlin " … is important, too, in the statement (at 484) that 'it cannot be that the simple fact of the party who prepared the will being himself a legatee is, in every case and under all circumstances, to create a contrary presumption' of want of capacity or of want of knowledge, and gives as one hypothetical instance, where such fact may be of little if any weight, the case where a man of very large property, worth 100,00 l., gives a legacy of 50 l. to his confidential attorney." 43 During the course of oral submissions counsel for the respondent in effect abandoned the claim that there was suspicion attending the reading of the Will. This was all but inevitable, as there was really no reason to doubt that the deceased had carefully read the Will before signing it and the findings of due execution and testamentary capacity meant that his Honour accepted that she had done so. That left the suspicion generated by the circumstances of the Will's preparation, being differences found between the notes and the Will on the careful analysis to which they were subjected, its form as a document with interlineations and misalignments (quite apart from the addition of the bequest of the E P Fox painting and the later "free of all duties etc" in ten pitch), and some evidence of the deceased's testamentary wishes expressed at various times prior to her death. Many matters were set out by counsel for the respondent in the schedules attached to the respondent's written submissions. 44 We have already upheld the trial judge's conclusion that the bequest to the appellant should not be admitted to probate because he was not satisfied that it was in the Will when executed by the deceased. Shorn of that bequest, so that there is taken away the argument that the illicit gift showed that the deceased can not have known and approved the contents of the Will, does there remain suspicion sufficient to reject the Will as containing the deceased's true testamentary intention? Turner P considered a similar the question in Tanner v Public Trustee [1973] 1 NZLR 68, stating at 88 that there were cases where the question in issue was not whether the Will as a whole was attended by suspicion, but whether the onus had been discharged in relation to the particular benefaction granted to the propounder of the Will. 45 It was not in contest at the trial that, apart from the bequest of the E P Fox painting and the "free of all duties etc" in ten pitch, the notes were genuine; nor, apart from the same matters, did the interlineations and misalignments point to more than an amateur's preparation of the Will. The evidence of execution of the Will, which his Honour accepted, was not consistent with absence of knowledge and approval of its contents, and there was evidence to the contrary of the expressions of testamentary wishes on which the respondent relied. Having considered the matters set out in detail in the schedules earlier mentioned, we see no reason in this case to find that the entire Will is invalid, and accordingly would dismiss the cross-appeal. 46 The respondent might simply have opposed the appeal, in which case he might have obtained an order for his costs. He did not, but cross-appealed. Each of the appellant and the respondent sought to improve his position from that established at the trial. Each failed to do so. The deceased did not by her conduct contribute to the litigation on the issues on appeal, and there is no reason for an order that either side's costs be paid out of the estate of the deceased. In these circumstances we consider that no order should be made as to the costs of the appeal, so that each side bears his own costs. 47 It should be noted that the issues at the trial did not include whether, if the grant excluded the bequest of the E P Fox painting, the grant should not be made to the appellant because he was not a fit and proper person to be executor. That was accordingly not an issue on the appeal, and we say nothing about it. 48 Orders:

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