[1978] VR 596
RE GREY SMITH, DECEASED
SUPREME COURT OF VICTORIA
MURPHY, J
5 September, 07 October 1975
[1978] VR 596
Administration and probate — Will and codicil — Practice where validity of
codicil in doubt — Executor seeking probate of will alone — Onus of proof on
executor — Onus of proof on person seeking to propound codicil — Consent of
interested persons gives no jurisdiction to ignore testamentary document — Dependent relative revocation
.
A testatrix executed a will and codicil prepared by her solicitors; and
shortly before her death she signed a paper addressed to her solicitors which
provided, "if I fall down dead--I wish my estate to be left to my nephew son
of my brother". Her only surviving relatives were a niece and two nephews; and
the paper was witnessed by the wife of one nephew and a nurse.
The executors proved the will and codicil in solemn form, and applied for
probate of either the will and codicil; or the will, codicil, and testamentary
document. The next of kin had taken independent advice and consented to the
application for a grant of probate to the will and codicil alone. The third
testamentary document was not proved but was placed before the Court.
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[1978] VR 596
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