[1964] VR 179
IN the WILL OF STEWARD, deceased
SUPREME COURT OF VICTORIA FULL COURT
O'BRYAN (1), SMITH (1) and PAPE (1), JJ
22, 23, 26, 27 August, 23 October 1963
[1964] VR 179
Administration and probate — Will — Practice — Executor seeking probate of
earlier will — Later will challenged — Validity of latest will should be
determined first — Onus on caveator to prove revocation of will propounded — Administration and Probate Act 1958 (No.6191), s15 — Partnership Act 1958 (No.
6330), s37.
.
(1) Where it is alleged that a will being propounded has been revoked by a
later will, the onus is not on the propounder of the earlier will to prove
that the later will is not a testamentary instrument which revoked the earlier
will; the onus of proving revocation of the earlier will is on those who set
up the later will. They have to prove the validity of the later will, except
where the later will is attacked as being invalid because of duress or undue
influence, in which case the onus is on the party making such assertions.
Cutto v Gilbert (1854) 9 Moo PC 131; 105 ER 31; Stoddart v Grant (1851) 1 Macq
163; Re Barlow, [1945] VLR 193; [1945] ALR 175; Nicholson v Equity Trustees
Executors and Agency Co Ltd (1936) 10 ALJ 119, followed.
(2) Where there is an earlier and a later will, it is desirable that the
validity of both wills be investigated together and that the validity of the
later will be determined first.
Re Barlow, [1945] VLR 193; [1945] ALR 175, approved.
Continue Reading This Report
[1964] VR 179
Best Value
Digital Subscription
$45/mo
or $450/yrSAVE $90