McCauley v McCauley and McCauley [1910] HCA 16

McCauley v McCauley and McCauley [1910] HCA 16 - HCA 1910 case summary — Zoe

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who died in the Brisbane Hospital on 18th June 1908. The will propounded was not forthcoming. The case was heard, partly on oral evidence and partly on evidence taken on com- mission, at Brisbane, before Street J., who was satistied of the due execution of the will, and that it had not been revoked by the testator. The evidence as to the execution and contents of the will was given by one Alderton, and his evidence, if accepted, was clear and satisfactory to establish beth points, The learned Judge who heard his evidence accepted it as not only accurate, but trustworthy, and under these circumstances this Court must also accept it unless some doubt is thrown upon it from some other and independent source. The rule as to the - establishment of wills that are not forthcoming is laid down by Lord Wensleydale in the case of Welch v. Phillips (1) : - * The rule of the law of evidence on this subject, as established by a~ course of decisions in the Ecclesiastical Court, is this: that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense ; for it is highly reasonable to suppose that an instrument of so much importance would be carefully pre- served, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary. The onus of proof of such circumstances is undoubtedly on the party propounding the will." That rule has often been applied and has never been departed from or varied. 'The probability that a will not forth- coming has been destroyed animo revocandi and not lost ob- viously depends upon cireumstances. One important element to be considered is the nature of the custody in which it is kept. All the facts of the case must be considered, and amongst them the nature of the provisions of the will itself is very material. I

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value, of which his mother was tepant for life, with remainder to her children in equal shares. He was aware that if he died intestate his share would go to his father, and he did not desire that that should happen, fearing that his father would waste it. As early as 1906 he expressed the intention of making a will in favour of his nephew and godson, Desmond, of whom he was very fond. If Alderton's story is correct, testator made a will in October 1907 in favour of the plaintiff for life, with remainder to Desmond. The plaintiff says that the testator afterwards told him that he had made a will to that effect and showed it to him. A witness named Shepherd says that the testator told him the same thing. The testator left Sydney in May 1908, apparently to escape from some trouble that threatened him, and, desiring concealment, he went to the Richmond River in the northern part of New South Wales, where he stayed a few days, and then went on to Brisbane. He was on very affectionate terms with Desmond McCauley up to the very night of his departure, and they had a very affectionate parting. These are the relevant facts as to the probability of the testator changing his mind, and allowing the property of which he was possessed to go to his father as on an intestacy, instead of to his brother and nephew. Now as to the nature of the custody in which the will was kept. On that point there is very little evidence. The testator had no regular repository for documents. He had a chest of drawers in his mother's house, and that is all we know of any place of safe custody. A witness named Nock, who was examined on commission at Brisbane, stated that he saw the testator at Lismore about 17th May, and was with him in his bedroom when he was undressing at night. Some documents fell out of his coat pocket while he was taking off his coat. Nock went to pick them up, and testator said, " Be careful of that, my will is there." He added that the will was in favour of the plaintiff. If he said that, it was not strictly correct, and yet was not inaccurate, because the will was in favour of his brother with remainder to Desmond. From Lismore testator went to South

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plaintiff had spoken the truth in swearing that he had fully searched for the will after the testator's death, and had failed to find it. That finding must necessarily be involved in the judgment, although the learned Judge makes no reference to the circumstances to which I have alluded. There could hardly be a stronger reason against granting probate of a will sought to be established by secondary evidence than the existence in the Judge's mind of a suspicion reasonably founded that the original will was being kept back, or had been fraudulently destroyed by the person propounding it. No judge, however, would be justified in refusing probate for that reason without definite grounds of suspicion. An all important factor in determining such a question must always be the view which the Judge may take of the character, conduct, and general credibility of the person pro- pounding the will. In the investigation of that issue in this case the plaintiff's conduct at the trial as party and as witness would afford the Judge at the trial a safe guide as to his credibility, and in reviewing the decision it must be remembered that the learned Judge at the trial had the invaluable advantage of that guidance. Sitting in this Court without that advantage I find it impossible to say that the learned Judge did not find in the demeanour of the plaintiff, the defendant and other members of the family at the trial, a satisfactory explanation of those circumstances in the plaintiffs conduct to which I have called attention. In a case such as this, involving as it must have done some discord in the family, the temperament and disposition of the various members of the family and the nature of their relations to each other must always be an important factor in determining issues as to their credibility. The right view to take of the cir- cumstances to which I have been referring would depend largely upon the opinion which the learned Judge formed as to the credibility not only of the plaintiff, but of the other members of the family. In my opinion he must be taken to have found, after considering all these matters, that the plaintiff's explanation of why the will was not forthcoming at the trial was true and honest. Under these circumstances, applying the principle acted upon by this Court in Dearman v. Dearmamn (1) to all the (1) 7C.L.R., 549.

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that the absence or cancellation of the paper once in, and not traced out of, the deceased's own possession, was not attributable to the deceased. This negative may be established by a.strong combination of circumstances leading to a moral conviction that the deceased did not do the act, or it may be established by direct positive evidence in different ways." He then goes on to illustrate the different ways he is referring to. In Six John Nicholl's jadgment in Lillie v. Lillie (1) he puts the matter in this way: - " The fact that the deceased executed such a will is proved ; but, as it is not forthcoming, the party setting it up must satisfy the Court that it was not destroyed animo revocandi, by the deceased." To that Mr. Haggard adds a note : - * Not by evidence amounting to positive certainty, but only such as reason- ably produces moral conviction: Davis v. Davis (2); Colvin v. Fraser (3)." The expression "morally convinced " or " morally satisfied " is apparently used with special reference to cireumstan- tial evidence. The adverb adds nothing to the exactness of the statement. In most cases the only evidence available to rebut the primd facie presumption of loss is circumstantial evidence, and in such cases it seems to me that nothing more can be de- manded of the party seeking to rebut the presumption than that he should establish such a state of facts and probabilities as will leave no reasonable doubt in the Judge's mind that the testator did not destroy the will, or did not destroy it animo revocandi. If the facts and probabilities do leave a reasonable doubt in the Judge's mind as to whether the testator did or did not destroy his will or destroy it animo revocandi, the presumption must prevail, The learned Judge, applying this principle to all the facts and circumstances material to be considered on that issue, held that the circumstances raised a higher degree of probability that the will was accidentally lost or destroyed, than that it was intentionally destroyed, and so was convinced that the will had not been des-

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troyed animo revocandi. In taking that view he arrived, in my - opinion, at a right conclusion. he testator's affection for his godson and desire to benefit him by his will goes back to 1906. It was frequently expressed to members of the family from that time until it resulted in the execution of the will propounded, and the evidence satisfies me that that was his frame of mind when he left Sydney for Lismore. If Nock's evidence is to be believed, and I see no reason to doubtit, his feeling for the plaintiff had in no way altered by the 18th or 19th May when Nock met him in Lismore. The testator, it was urged, was aware that if he died intestate his father would get his share. Some reliance was placed by the plaintiff on the strained relations between the testator and his father, which had existed for some time before the departure of the former for Lismore. I attach small importance to whatever ill- feeling may have existed between father and son up to that time, There is not sufficient evidence to satisfy me that it in any way affected the son's testamentary intentions. 'The renewal of affee- tionate intercourse between them in the letters which the testator wrote from Lismore and from Brisbane is clearly enough estab- lished. But that is, I think, immaterial. The governing motive in the plaintiff's mind was in my opinion his affection for the plaintiff and the plaintiff's son, and his desire to benefit both of them. That intention is established satisfactorily to my mind, and there is besides express evidence of its continuance until a day or so before he arrived in Brisbane. After that we have no more light on the testator's testamentary intentions. But it seems to me extremely improbable that in the short period that elapsed between then and his entry into the Brisbane Hospital he should suddenly, and apparently without reason, have abandoned the intention to benefit the plaintiff and his son, founded on such reasonable grounds and held up to that time so persistently. Turning now to the probabilities of loss other than by some deliberate act of destruction on the testator's part, I take it as established that he had the will in his possession at Lismore. He was evidently a man of careless, probably of dissipated habits. At the time when Nock spoke to him he was carrying the will in his pocket. Leaving, as I think we must, criminal abstraction of the document by some third party out of the question, there were

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as it seems to me, considerable importance on the result. One is the circumstance that at Lismore, at the time Nock saw the will, the testator told him that he had £13 or £14 which he said he had received from the plaintiff. The other is a letter (exhibit No. 1) which the appellant received from the testator. It is dated 17th May. It contains grateful and affectionate references by the testator to his father, and has been relied on as indicating such a mental attitude of the writer as supports the presumption. I think that taken by itself it might be fairly so considered. But there is the statement - substantially contemporaneous, perhaps actually later - made by the testator to Nock, "Be careful Jack, my willis there. Iam leaving everything to my best friend Diddy" - that is the respondent Desmond. Consequently, and regarding the statement to Nock as evidence of intention only material to this branch, I am unable to give such weight to the letter, and to the recognition of the father's generous anxiety for his son's protection and sustenance, as would otherwise attach to it. The expression referred to is in keeping with the entire absence from the letter of any intimation of altered testamentary wishes. The son's gratitude and affection did not up to that time go so far as to shake his previous determination. And it gives force also to the argument of Mr. Know that the real motive of the testator for not leaving his interest to his father was the probability of its being wasted, and not any feeling of actual and personal hostility. Up to reaching Brisbane then, the will remains, and the intention to preserve it apparently continues, for there is no sufficient reason for the disappearance of the document between Nock's interview and the arrival at the Palace Hotel. But then I come to what has given me some serious consideration. The testator arrived in Brisbane on 20th May, and, as I assume, carrying the will with him. From that time to the 26th he was so ill as to be under Dr. Connolly's care. In the week following Saturday 28rd, that is until the 30th, according to Mary O'Halloran he went out only once or twice. Mr. MeMahon tells us he was then in a weak state, not going far. The next week, 31st May to 6th June, he was according to McMahon picking up, and clearly in no condition to engage in any occu- pation likely to occasion the loss of the document. Next day,

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Judgment (96 paragraphs)

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