Lippe Caveator v Hedderwick [1922] HCA 44

Lippe Caveator v Hedderwick [1922] HCA 44

The destruction of the original will by the testatrix was not carried out with the intention of revoking it, but under the mistaken belief that a new, invalid will had already revoked the former; therefore, probate should be granted of the draft of the original will. The caveator was justified in contesting probate and is entitled to costs out of the estate for the Supreme Court proceedings.

Parties
Testatrix: Isabel Lippe; Executor/respondent: Bruce Pitcairn Hedderwick; Husband/caveator/appellant: John Nicholson Lippe
Jurisdiction
Australia
Judgment Date
24 October 1922
Procedural Posture
Probate Appeal / Appeal From Supreme Court of Victoria to High Court of Australia
Outcome
Order of Supreme Court varied; costs of appellant in Supreme Court to be paid out of the estate; appeal otherwise dismissed; appellant to pay costs of this appeal with set-off.
Legal Topics
Revocation of Will, Dependent Relative Revocation, Costs in Probate
Succession Wills & Probate Revocation of Will Dependent Relative Revocation Costs in Probate

Case Brief

Summary, issues, holding and outcome

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Parties

Isabel Lippe

Testatrix

Bruce Pitcairn Hedderwick

Executor/respondent

John Nicholson Lippe

Husband/caveator/appellant

Procedural Posture

Probate Appeal / Appeal From Supreme Court of Victoria to High Court of Australia

Legal Issues

  1. 1 Whether the testatrix revoked her duly executed will by destruction with intent to revoke
  2. 2 Whether probate should be granted of a draft of the lost will
  3. 3 Entitlement to costs for opposing probate

Ratio Decidendi

The destruction of the original will by the testatrix was not carried out with the intention of revoking it, but under the mistaken belief that a new, invalid will had already revoked the former; therefore, probate should be granted of the draft of the original will. The caveator was justified in contesting probate and is entitled to costs out of the estate for the Supreme Court proceedings.

Court Disposition

Order of Supreme Court varied; costs of appellant in Supreme Court to be paid out of the estate; appeal otherwise dismissed; appellant to pay costs of this appeal with set-off.

Orders

  • Probate to be granted of draft of the original will to the executor respondent.
  • Appellant allowed out of the estate his costs in Supreme Court of Victoria.