Gair v Bowers [1909] HCA 57

Gair v Bowers [1909] HCA 57

There is no sufficient admissible evidence that the will of 17th December 1900 was duly executed, as the only direct evidence, Mollison's affidavit, is discredited and based on information and belief, not direct knowledge. As the will of 1900 was not proved, the will of 13th June 1890 stands as there is no admissible evidence proving its revocation by a later will nor clear evidence of contents or due execution of any will in 1901.

Parties
Appellants: Gair, Bowers, and Mansfield; Respondents: Bowers, Price, and Hall; Respondent: Falconar
Jurisdiction
Australia
Judgment Date
14 September 1909
Procedural Posture
Appeal / Final Judgment on Appeal From Supreme Court of Victoria
Outcome
Appeal allowed; order granting probate of the 1900 will set aside
Legal Topics
Due Execution of Wills, Revocation of Wills, Admissibility of Evidence in Probate
Wills and Probate Due Execution of Wills Revocation of Wills Admissibility of Evidence in Probate

Case Brief

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Parties

Gair, Bowers, and Mansfield

Appellants

Bowers, Price, and Hall

Respondents

Falconar

Respondent

Procedural Posture

Appeal / Final Judgment on Appeal From Supreme Court of Victoria

Legal Issues

  1. 1 Whether the will dated 17th December 1900 was duly executed and entitled to probate
  2. 2 Whether the will of 13th June 1890 was revoked by a subsequent will or otherwise
  3. 3 Whether statements made by the testator after the execution of a will are admissible as evidence of execution

Ratio Decidendi

There is no sufficient admissible evidence that the will of 17th December 1900 was duly executed, as the only direct evidence, Mollison's affidavit, is discredited and based on information and belief, not direct knowledge. As the will of 1900 was not proved, the will of 13th June 1890 stands as there is no admissible evidence proving its revocation by a later will nor clear evidence of contents or due execution of any will in 1901.

Court Disposition

Appeal allowed; order granting probate of the 1900 will set aside

Orders

  • Probate of the will of 13th June 1890 is to be granted to the executors named therein
  • Order of 19th February 1909 granting probate of the draft will of 17th December 1900 reversed