Blundell v Curvers [1999] NSWCA 421

Blundell v Curvers [1999] NSWCA 421

The appeal failed because the validity of the ten pitch bequest and related words had been squarely in issue on the pleadings and evidence, the appellant had notice that his account of typing the Will was challenged and had an opportunity to address it, so Browne v Dunn was not offended. Once the trial judge rejected the appellant's evidence that the Will was typed in sequence, the expert evidence and surrounding circumstances supported the inference that the ten pitch words were not in the Will when executed. The cross-appeal failed because, after omitting the suspicious ten pitch words, the remaining evidence established due execution, testamentary capacity, and knowledge and approval...

Jurisdiction
Australia
Judgment Date
18 November 1999
Procedural Posture
Appeal and Cross Appeal From Grant of Probate in Solemn Form With Certain Words Omitted / Court of Appeal Judgment
Outcome
Appeal dismissed; cross-appeal dismissed; no order as to costs.
Legal Topics
['execution of Will' 'grant of Probate in Solemn Form' 'browne V Dunn' 'procedural Fairness' 'expert Evidence' 'suspicious Circumstances Surrounding Will' 'knowledge and Approval of Contents of Will']
['succession Law' 'probate' 'civil Procedure' 'evidence'] ['execution of Will' 'grant of Probate in Solemn Form' 'browne V Dunn' 'procedural Fairness' 'expert Evidence' 'suspicious Circumstances Surrounding Will' 'knowledge and Approval of Contents of Will']

Case Brief

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Procedural Posture

Appeal and Cross Appeal From Grant of Probate in Solemn Form With Certain Words Omitted / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the bequest of the E P Fox painting and the words in ten pitch type were in the Will at the time of execution.' 'Whether the appellant was denied procedural fairness by failure to put directly to him that he inserted the bequest after execution, contrary to the rule in Browne v Dunn.' "Whether the trial judge's reasoning process was illogical in inferring that the contested words were not in the Will at execution." 'Whether suspicious circumstances required refusal of probate for the whole Will on the cross-appeal.']

Ratio Decidendi

The appeal failed because the validity of the ten pitch bequest and related words had been squarely in issue on the pleadings and evidence, the appellant had notice that his account of typing the Will was challenged and had an opportunity to address it, so Browne v Dunn was not offended. Once the trial judge rejected the appellant's evidence that the Will was typed in sequence, the expert evidence and surrounding circumstances supported the inference that the ten pitch words were not in the Will when executed. The cross-appeal failed because, after omitting the suspicious ten pitch words, the remaining evidence established due execution, testamentary capacity, and knowledge and approval...

Court Disposition

Appeal dismissed; cross-appeal dismissed; no order as to costs.

Orders

  • ['Appeal dismissed.' 'Cross-appeal dismissed.' 'Make no order as to the costs of the appeal.']