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: