Dwyer v Vindin [1906] HCA 49; (1906) 4 CLR 216 (20 August 1906)

HIGH COURT OF AUSTRALIA

Dwyer Appellant; and Vindin Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

20 August 1906

Griffith C.J., Barton and O'Connor JJ.

Delohery, for the appellant.

The judgment of the Court was delivered by

Griffith C.J.

The amount involved in this case is small, the total value of the estate being. £200, and after payment of debts about £100. The case therefore is one in which the Court will not grant special leave to appeal unless it can be said that some important question or general principle of law is involved. It is said that the case is brought by the facts within the rule that the burden is cast upon the person propounding a will, who has prepared it himself, and is entitled to benefits under it, to establish affirmatively the testamentary capacity of the testator, and to remove the suspicion that the will has been obtained by undue influence, and, further, it is said that under the circumstances a person interested in having the will declared invalid is entitled to presume what the law presumes, that the will is primâ facie invalid, and therefore to call upon the person propounding the will to prove, not only that it was properly executed, but that it was not obtained by undue influence. It is said that the learned Judge who granted probate in this case was satisfied too easily that the burden which the law casts upon the plaintiff was discharged, not that he made any mistake as to the rule of law applicable to the case. Another objection is that the learned Judge applied the right rule wrongly to the facts in evidence. That, however, is not a ground for granting special leave to appeal. Even if he did, we should certainly not grant special leave in the circumstances of this case. The only material point, therefore, is that the learned Judge ordered the defendant to pay the costs occasioned by his unsuccessful opposition to the will. There is no doubt as to the general rule that in a case of this sort a person interested is entitled to raise this defence, and does not by doing so incur any risk of being ordered to pay the costs if he is unsuccessful. That is not disputed. But the rule is subject to this exception, that though as a general rule that principle is to be applied, there may be circumstances that would make it unreasonable to raise such a defence; if he knows, for instance, that although the will is primâ facie invalid, on the ground of the suspicious circumstances surrounding its execution, there are facts which remove this objection. In this case the learned Judge, while recognizing the general rule, thought that the defendant by his own conduct had deprived himself of the right to take advantage of the rule. That is a question of fact, and on questions of fact it is not our practice to grant special leave to appeal.

We are therefore of opinion that special leave to appeal in this case ought not to be granted.

Special leave refused.

Solicitor for applicant, W. M. Daley.