McKINNON v VOIGT and AnotherSUPREME COURT OF VICTORIATadgell, Ormiston and Phillips JJA10, 11 September, 14 November 1997Administration and probate — Wills and codicils — Validity of will — Hand-written will — Suspicious circumstances — Delay in producing will — Onus of proof — Interested witnesses — Failure to dispel suspicious circumstances — Whether re-trial should be ordered.
Objection was taken to the grant of letters of administration with a hand-written will annexed on a number of grounds, including that the will was a forgery. The will had been written by a son of the executrix and sole beneficiary under the will, allegedly on the instructions of the deceased shortly before his death when he was gravely ill. It purported to be signed by the deceased and was witnessed by the amanuensis and his sister. The caveatrix, a relative of the deceased, had obtained a grant of administration ad colligenda bona of the deceased's estate shortly after his death and notified the executrix under the hand-written will and her son. However, they did not produce the will for another three months. The trial judge found the allegation of forgery of the hand-written will not proved and granted letters of administration to the propounders, two children of the executrix, who in the meantime had died. The caveatrix appealed.