Cinnamon v Public Trustee for Tasmania [1934] HCA 26

Cinnamon v Public Trustee for Tasmania [1934] HCA 26 - HCA 1934 case summary — Zoe

[9]

Cinnamon, and cited David Cinnamon as sole next of kin to attend to support any interest he might have. The document propounded as the will consisted of a single sheet of paper folded down the middle so as to form four pages. The first page contained a printed form of will, which was filled in in writing ; and upon the second and third pages there was also writing. Except for the signatures of the attesting witnesses, all the handwriting was that of the testator. The upper half of the first page was filled with written dispositive clauses ending with a completed sentence and a full stop. These clauses consisted of eight bequests to named beneficiaries. Of these bequests two were struck out in pencil, On the right hand side of the page and immediately after the last of the bequests so made was written the word "over." Then followed, on the same page, the appointment of the respondent - as executor, below which appeared the attestation clause, the signature of the testator, and the signatures of the attesting witnesses. On the second page there appeared a list of the testator's assets but no dispositive clauses. This was the only writing on the second page, and it occupied about the top third of the page. On the third page the list of bequests to named beneficiaries was continued. This handwriting occupied about the top half of the page, the rest of the third page being left blank. There was no writing at all on the third page except the names and descriptions of the beneficiaries and the amount each was to get. Of the beneficiaries mentioned on the third page, three were struck out in pencil, another was struck out in pencil and another bequest was substituted in pencil, the amount given to another beneficiary was struck out in pencil and another amount substituted in pencil. The final bequest was written in pencil. The attesting witnesses deposed that before signing they - glanced through the will: One said he remembered seeing the name of one of the beneficiaries mentioned on the third page, the other witness remembered seeing the same name and also the name of another beneficiary described on the third page. The names so deposed to appeared only on the third page.

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space down the page of about an inch. The word "appoint " ends about five inches from the right hand edge of the paper, and, about three inches from it, and almost level with it, the word " over ee: written in the same ink and in the same character of writing as that in which the testator wrote the list of legacies above it. In the space between the printed word " appoint" and the written word "over" are written the words "The public" and underneath "Trustees my." 'These four words he wrote in characters somewhat different from the list of legacies but in the same ink. It may be safely inferred that "over" was written first and that afterwards "The public Trustees my " were written in two lines to avoid the word "over" Over the leaf upon what, according to conventional numbering, would be the third page, written in the same ink and characters and in the same form as the list of legacies upon the first page, is a further list, just as it would be written in continuation of the first. On the opposite page (conventionally the second) is written what appears to have been intended as a note of assets and investments which his estate comprised. On the right hand top corner are the date, 22nd May 1925, and the testator's name, followed by the word "estate." Under this, but commencing on the left side of the sheet, is a list of investments. On the first page, two of the legacies contained in the list are scored through in pencil, and, onthe third page, four are so dealt with. Upon this page a legacy is added in pencil at the end of the list, and, in pencil, a change is made in the name of a brass band to which £50 had been allotted. The paper bears one or two other pencil marks, which may be ignored because it was proved that they were not made by the testator, but by a solicitor for the purpose of preparing another will which in fact was never executed. Evidence was given, which Crisp J. accepted, that in the execution of the document the formal ceremony for executing and witnessing a will was carried out, and that the witnesses then saw writing on the second and third page and the names of legatees which occur only on the third page. The testi- monium clause gives the date of the will as 1st October 1921, but the evidence shows that it was actually executed at some time between the end of March and the middle of July 1925. Perhaps it was made at or shortly before the date given on the second page

[88]

part of the context anterior to the signature, it ought to be considered H.- C. or A. as following that context, though the position it may occupy in the os paper may be different (In the Goods of Sarah Kimpton (1) ). The Crxxamow present case is not one of that type. Pusu It has been further held that words which physically follow a aria signature may be admitted to probate, if they can be regarded as oy in the nature of an interlineation in the will. All the cases illustrating this doctrine are, I think, founded upon In the Goods of Birt (2). There, a will was written on two sides of a sheet. On the first page, there was a disposition in favour of testator's wife and the commence- ment of another disposition, marked with an asterisk and the words "see over"; the signature of the testator appeared at the bottom of the first page. On the second page, the testator completed the disposition which was commenced on the first page, and introduced it with an asterisk and the words " see over," thus: " see over *." The heir-at-law consenting, Lord Penzance admitted the whole document to probate. "It seems to be the better course " he said "to look upon these words as an interlineation, for the clause without them would be unmeaning. . . . He clearly intended that the words should be introduced where he made the first mark. t I think that these words, although, as written, they follow the signature, must be read in the place in which the testator intended they should be read, and therefore preceding the signature" (3). The editors of Jarman on Wills, 6th ed. (1910), p. 112, note (u) ; 7th ed. (1930), p. 100, note (c), assert that the decision is clearly wrong. But the case seems to have been generally acted upon, and even extended in its application (In the Goods of Greenwood (4) ; Palin v. Ponting (5); In the Goods of Elliott (6); In the Will of Bull (7); In re Heitsch (8); In the Will of Donovan (9); In the Will of Henry Martin (10) ). In Moroney's Case (11), Harvey, the Chief Judge in Equity of the Supreme Court of New South Wales, said that the Court might admit to probate writing on pages subsequent to the attestation

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Judgment (99 paragraphs)