Gair v Bowers [1909] HCA 57

Gair v Bowers [1909] HCA 57 - HCA 1909 case summary — Zoe

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on previous occasions made statements which were relied upon as if they were evidence of the facts that Mollison had asserted on those oceasions to be true. But those statements were not evidence of the truth of what he said on the previous occasions. They were only evidence to discredit his sworn testimony in the witness box, but added nothing by way of positive evidence for the purpose of discharging the burden of proof of the proponents of the will. I will, however, refer to those statements so far as is necessary. Hall, the solicitor for the executors of the will of 1900, said : - * I had a conversation with Mollison on 25th October 1904. I said, 'Taylor told me he signed his will in the presence of yourself and another witness in December 1900, just before he went to New Zealand.' He said, ' Yes; I witnessed his will with Dr. Gray.' I saw Mollison on 2nd July 1908. I said, ' We have not got the original will executed by Taylor in 1900, and it is necessary now for us to have evidence of witnesses as to the signing of the will. I want you now to tell me what you recollect about it' He said, 'It is a long time ago and I have signed a lot of papers for Taylor. I cannot recollect exactly. I said, 'No one would expect you after a lapse of time to give all details, but I want you to tell me as nearly as you can what took place. He said, 'Dr. Gray was at Mr. Taylor's, and I was called in and signed with him. I said,' Do you recollect who signed first or any of the particulars? He said, 'No, I could not recollect that. I said,' Do you recollect my speaking with you in 1904 outside the Rialto? He said, 'Yes; you spoke to me and I then told you I witnessed the will with Dr. Gray, and I gave you my name and address.' I said, ' Well, you will have to think this matter over, and if you can think of anything further tell me, but don't venture to say anything you cannot recollect, because after a lapse of time it is not wonderful if you forget something.' I said, ' This is the attestation clause in the document I left with Taylor" (I read the clause to him.) 'You do not usually sign documents along with doctors, and as this clause was there that was probably what you did. However, you think it over and I will see you again. He said, ' When I spoke in 1904 you forgot the name of the doctor, and I then told you it was Dr. Gray.' I

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O'Connor J. The starting point in the history of the testa- tor's disposal of his property is the will of June 1890. As far as that will is concerned, as it appears to have been duly executed, the only question now raised is whether it was revoked by either of the two later wills in respect of which evidence has been given. If the will of December 1900, propounded by Mr. Duffy's clients is proved, then the will of 1890 is, of course, revoked. But assuming the will of December 1900 to be proved, then there is a further question raised by the next of kin. On their behalf Mr. Cohen alleges that there is a will subsequent to that of December 1900, the purport of which is unknown except that it is alleged to have contained a revocation of all previous wills. If that is so it would effect a revocation of the will of December 1900. As far, therefore, as the issues we have to deal with are concerned, they turn principally upon whether the will of 1900 was duly executed, and whether there was a will executed after that which had the effect of revoking all previous wills. Now, in the establishment of the due execution of the will of December 1900 the proponents rely, first, upon the affidavit of Mollison sworn on 4th July 1908. If there were nothing in the case but that, the affidavit on its face establishes that the will was duly executed. But under the procedure allowed by the Administration and Probate Act 1890, the affidavit haying been put in evidence, Mollison was cross-examined. He gave direct evidence of what he knew about the execution of the will of 1900. His evidence as to its execution amounts to this:

He had been an old and confidential employé of the testator and on many occasions, between 20 and 30, the testator had called him in to witness documents; that on this occasion the testator called him in to witness a document the nature of which he did not know; that he saw Dr. Gray there; that he did not see the testator sign; that he did not see Dr. Gray sign; and that he did not know that the document was a will until six months afterwards when Dr. Gray told him the document he had witnessed was a will. After that his attention is not called to the

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called to the circumstances until 2nd July 1908 when My, Hall _ sees him again and the conversation takes place to which the learned Chief Justice has referred. There can be no doubt that at the time of that last conversation all that Mollison remembered was that he had signed his name as witness to a document. As to whether he had seen the testator or the other witness sign his mind was evidently a perfect blank. After that lapse of time Mr. Hall was right in calling his attention to what must have been done by reading the attestation clause over to him. Two days afterwards Mollison went into Mr. Hall's office and signed the affidavit prepared for him. The affidavit follows the usual and somewhat technical form as to the execution of a will in the presence of two witnesses and their attestation in the presence of each other. It is quite likely, in my opinion, that a person, who is not used to the examination of documents or the bearing of words towards one another, would miss the point of the paragraph in the affidavit as to the witnesses having attested the will in the presence of each other and as to their having seen the testator sign it. However that may be, Mollison made the affidavit. Some short time afterwards his attention was called to the matter by Mr. Gair, who threw doubt upon the correct- ness of the affidavit. Mollison then came into Court and gave evidence. He was cross-examined and, in order to show that his evidence in the witness box as opposed to his evidence on affidavit is not to be relied upon, several conversations with Mr. Hall and one or two with Mr. Pitcher were given in evidence. Those conversations cannot have any materiality as evidence of what took place at the time of the alleged execution of the will. They can only affect Mollison's credibility. No doubt there are in the books many cases in which a will regular in form on being produced, showing an attestation clause signed by two witnesses, has been held to have been duly proved, notwithstanding the direct evidence of the witnesses that the statement in the attesta- tion clause is incorrect. In these cases the Court has found that the recollection of the witnesses was not to be relied upon,

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astute to give effect to that intention, if it can do so consistently with the established and settled principles of law. The Wi Act has laid down the formalities which are to be observed in order to make an effective and operative will; and, if those for-_ malities are not complied with, the law steps in, and, however clear the intentions of the testator may have been, unless they are expressed conformably to the requirements of the Statute, | they are disregarded, and his estate is distributed as upon an - intestacy." Exactly the same reasoning must apply to the evidence by which a case of the due execution of a will is to be established. For these reasons it appears to me that there is no evidence _ here upon which a jury could legally come to the conclusion - that there was due execution of the will as required by law. Some reliance was placed upon a declaration, made very shortly after the will was supposed to have been executed, by the testator himself to Mr. Hall. Whatever doubt as to the law may have : been raised in Sudgen v. Lord St. Leonards (1), there is no question now, after the considered judgment in Atkinson v. Morris (2), that a declaration of due execution of his will made by a testator cannot be allowed to establish due execution. IT pass on now to the next question, that is to say, whether the will supposed to have been executed at some time between January and April 1901 was duly executed. I agree with the learned Chief Justice that there is very strong evidence given by Farr of the due execution of some will by the testacor, but it is clear that there is no evidence of its contents. Mr. Cohen - endeavoured to put in evidence one of the forms which had been _ given to the testator by his friend Cosham some little time - before the date of the alleged execution of the will. It may _ be that, strictly speaking, that document could have been put in - evidence, but, if it had been put in evidence, it would not have - carried the case any further, because, according to the evidence of the witness Farr, he could not have said more than that he believed the paper was something like the document tendered in evidence in form and colour. His evidence is that the will itself was folded up in such a way that he could not see any of its con-

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technically evidence, for what it may be worth. It has b treated as evidence throughout the trial. If the Judge of instance had found that Mollison was not an honest witness when in the box, or if there were any reason for thinking that hi memory was better at the date of the affidavit (4th July) than a the conversations of 2nd July and 8th August, it might b difficult to disturb the finding in favour of the will. But Honor finds that Mollison was saying in the box what he believed to be true, and we are almost, if not altogether, in as good a posi- tion as his Honor to decide as to the effect of Mollison's evidence 'The affidavit is so conclusively discredited that, as I understan the judgment, the learned Judge proceeds to consider what ev dence there is of execution " apart from his (Mollison's) affiday Now, apart from the affidavit, there is no evidence of executi by the testator whatever. The conversations of Mollison with Hall and Pitcher were not on oath, were elicited by counsel suy porting the will, or by counsel acting pro hac vice in same interest; but these conversations are more damagi to the story contained in the affidavit than to Mollison's story in the box. Not once, from first to last, did Mollison say - even if we accept unreservedly the conversations of Messrs. Hall and Pitcher - that he saw the testator sign. I notice that the learned Judge is under some misapprehension as to two of the conver tions, or possibly he is misreported. The judgment says, "Th in 1904 Mollison told Hall that Taylor had signed his will in presence of Dr. Gray and himself as witnesses, and he repeat this on 2nd July 1908." There is nothing in the printed notes the evidence to justify any statements so definite or so expli His Honor finds sufficient proof of execution, in "the probabilit of the case. For the deceased had got Hall to prepare a will; it was prepared and handed over to the deceased, with an att tation clause, and a verbal explanation of what was to be done; and the deceased was an intelligent business man. But such priori probability of execution does not supply proof of exect- tion. There must be some proof of the factum. Our Courts are not Courts of conjecture, but Courts of proof by direct or cireum- stantial evidence. If a plaintiff had to prove a verbal contract with a deceased person and proved that the deceased was

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Judgment (105 paragraphs)