Murphy vs. Lewis

Australia

23.07.2021

Property

Grant of probate in solemn form cannot be made simply by consent of the parties

The Plaintiff commenced present action by writ for proof of a will in solemn form. The Plaintiff seeks an order that, the last will and testament executed on 9 April 2020 by the late Eileen Margaret Roberts (the deceased) who died on 14 April 2020 (aged 75 years) has force and effect in solemn form.

A grant of probate in solemn form cannot be made simply by consent of the parties. The Plaintiff is obliged to prove that the will is formally valid and made by a testator or testatrix who had the capacity to do so. However, the fact that the parties have agreed upon orders to resolve this matter is a relevant consideration.

For a grant in solemn form, the court must be satisfied on the evidence adduced by the party propounding the will, or by any other party to the suit of the due execution of the will by at least one of the attesting witnesses, and where the circumstances raise strong doubt as to the testamentary capacity of the deceased it is advisable to call medical evidence, if available, to show capacity. However, the propounder of the will may take advantage of the rule that the will properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding.

Thus, as senior counsel for the Plaintiff points out, it is well-established that two important presumptions of fact arise in the proof of the final will of a deceased. These are: (a) a duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding (or of testamentary capacity); and (b) unless suspicion attaches to the will, the testator's due execution of the will is sufficient evidence that the testator knew and approved of the terms of the will.

Having considered the uncontradicted evidence, in particular the evidence of three independent witnesses, two of whom are medical practitioners, and the other, who was at the time of taking the deceased's instructions for her will, a certified legal practitioner, present Court is satisfied to the requisite standard that: (a) the deceased held full testamentary capacity; (b) she knew and approved of the contents of the will; and (c) the will was executed validly in accordance with Section 8 of the Wills Act, 1970. A grant of probate in solemn form, as proposed by the parties, should issue.

Tags : Probate solemn form Grant

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