Tipper v Moore [1911] HCA 42; (1911) 13 CLR 248 (15 September 1911)

The rule as to the way in which an appeal based on the argument that the Judge below has come to an erroneous decision on a matter of fact has been so often laid down that it is not necessary to repeat it. It is not necessary to say whether we should have arrived at the same conclusions as the learned Judge. It is sufficient to say that the conclusions to which he came were obviously warranted by the evidence. It is suggested that the execution of the will was obtained by undue influence. The only ground for that suggestion is, in short, that the principal beneficiary is the husband. Then it is said that the testatrix was not of testamentary capacity because she suffered from delusions. But, as was said in Banks v. Goodfellow[1], referred to by my brother Barton, delusions are only material to the question of testamentary capacity if they are connected with the dispositions of the will. A number of matters have been referred to in this case which are said to have been delusions of the testatrix. At one time she thought that she was pregnant when she was not. At some considerable time before she made her will she sometimes used to believe that men were trying to poison her in order to get her property. She also said that she had visions, in one of which she saw a procession of men passing before the Virgin Mary. She used to consult fortune tellers and believed what they told her. When she was a widow she used to imagine that a number of men wanted to marry her, All those things are irrelevant to the question of testamentary capacity.

The only remaining matter is that the testatrix said she had never been married before her marriage to the husband who survived her, and that she had never had any children. If her identity is established she had been married before and had had children. But there appear to have been circumstances in her earlier life which she would have been very glad to have entirely forgotten. The learned Judge below came to the conclusion that in saying she had not been married before and had no children she was purposely not telling the truth. I think it is more probable that she did remember that she had been married and had had children, but that she had determined to assert that she had not been married and had had no children, hoping that the falsehood would not be found out. The other alternative is that she had forgotten that she had been married and had had children. That however is very improbable. Even if she had forgotten it would not be a delusion. For these reasons I entirely concur with the conclusions of the learned Judge below, and I think that the positive evidence of testamentary capacity was quite sufficient.

I am entirely of the same opinion. The whole of the evidence so far as it is material was before the learned Judge below and he had the witnesses before him. The ordinary tests were applied to their credibility and their memory, and he came to conclusions upon all the questions of fact raised in favour of the respondents. Every one of his conclusions was warranted by the evidence, and it is not necessary for us to say that we agree with every one of them. If I were asked for my own opinion upon them, I should unhesitatingly say that I thoroughly agree with every one of those conclusions.

As to the question of testamentary capacity the evidence called for the respondents was enough in the absence of any clear evidence to the contrary.

As to the alleged delusions, the case of Banks v. Goodfellow[2] entirely disposes of all of them except that in regard to her previous marriage and the children born of that marriage.

The conclusion to which the learned Judge below came is that the testatrix had resolved to renounce all connection with that period of her life during which she was the wife of Tipper and that she did not stick at falsehood in cutting off that period of her life from that during which she was the wife of Moore, and I think there is abundant ground of inference upon which he might come to that conclusion. [His Honor dealt with the evidence on that question and continued.] Apart from that alleged delusion, there remained, when it had been disposed of, no evidence of delusions which could have affected the mind of the testatrix as to the disposal of her property and, that being so, the evidence of capacity aliunde stands where it was, and there is no reason to disturb the finding of mental capacity.

As to undue influence the case resembles Parfitt v. Lawless[3] where Lord Penzance said:—"Again it was argued that there were certain facts in this case calculated to give rise to serious suspicions, and it seemed to be contended that any conclusions which might suggest themselves by way of suspicion merely, however vague, might properly, if the jury pleased to indulge in them, form the basis of a verdict; and consequently that if facts were proved calculated to generate such suspicions, enough had been done to make a case fit to go to the jury. If the proposition were correct, it would follow that the defendant had nothing more to do in a case like the present than to prove that the plaintiff was a Catholic priest, that he was the confessor of the testatrix, and that she had made him her residuary legatee." Mutatis mutandis that quotation exactly applies to the present case. There seems to me to be absolutely no evidence of any kind to support the allegation of undue influence. On every ground then I think the appeal should be dismissed.

I concur. No ground whatever has, in my opinion, been shown for disturbing the conclusion at which the learned Judge below arrived.

[1] L.R. 5 Q.B., 549.

[2] L.R. 5 Q.B., 549.

[3] L.R. 2 P. & M., 462, at p. 471.

High Court of Australia

Tipper v Moore [1911] HCA 42; (1911) 13 CLR 248 (15 September 1911)

HIGH COURT OF AUSTRALIA