Nock v Austin [1918] HCA 73

Nock v Austin [1918] HCA 73

The trial judge directed his mind to the question of knowledge and approval in light of suspicious circumstances, and, finding evidence to support this, his decision for probate in favour of the plaintiffs should stand. However, as the suspicious circumstances were due to plaintiffs' own conduct, the unsuccessful opponent is entitled to her costs from the residue of the estate.

Parties
Plaintiff: Arthur John Samuel Austin; Plaintiff: Alfred Joseph Morgan; Defendant: Jessie Emily Nock
Jurisdiction
Australia
Judgment Date
29 November 1918
Procedural Posture
Probate Action / Appeal From Supreme Court of New South Wales
Outcome
Appeal dismissed (with variation)
Legal Topics
Knowledge and Approval of Will Contents, Suspicious Circumstances in Will Preparation, Costs of Probate Litigation
Succession Law Wills and Estates Knowledge and Approval of Will Contents Suspicious Circumstances in Will Preparation Costs of Probate Litigation

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Parties

Arthur John Samuel Austin

Plaintiff

Alfred Joseph Morgan

Plaintiff

Jessie Emily Nock

Defendant

Procedural Posture

Probate Action / Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether, in light of suspicious circumstances, the plaintiffs established that the testator knew and approved the contents of the will
  2. 2 Whether the costs of the unsuccessful opposition should be paid out of the estate

Ratio Decidendi

The trial judge directed his mind to the question of knowledge and approval in light of suspicious circumstances, and, finding evidence to support this, his decision for probate in favour of the plaintiffs should stand. However, as the suspicious circumstances were due to plaintiffs' own conduct, the unsuccessful opponent is entitled to her costs from the residue of the estate.

Court Disposition

Appeal dismissed (with variation)

Orders

  • Order allowing the defendant her costs of the hearing out of the residuary estate
  • Order varied as to costs; otherwise, appeal dismissed