DERRETT V. HALL AND ANOTHER 34/1941

och of Ky

cass,

UL J. Green, Govt, Print, Melb.

(Co

SB IN THE HIGH COURT OF AUSTRALIA.

ORIGINAL

DERRETT...

_. _HALL_AND_ ANOTHER

REASONS FOR JUDGMENT.

Judgment delivered at ...... SYDNEY.

on... Yth. February.,..19h2.. i DERRETT ve. HALL & ANOTHER.

a POs

ORDER:

Appeal allowed. Order of the Court below discharged, and in

lieu thereof, order that the suit be dismissed. Costs of plaintiffs and defendant of the hearing in the Court below

and of this appeal, those of the plaintiffs as between solicitor and client, to be paid out of the residuary estate of the testator.

fee

JUDGMENT.

DERRETT

Vv.

HALL AND ANOTHER.

Li ei RRPEAE PEERS

wr

DERRETT v. HALL AND ANOTHER.

JUDGMENT. RICH, . .

The order from which this appeal originates was made in a suit brought by the plaintiffs for the purpose of obtaining probate of the will of a testator who died at the age of 74 or thereabouts. The defen dant,the testator's eldest child, opposed the grant of probate but His Honour the Probate Judge made the grant whereupon the defendant lodged this appeal. Her attack is not directed against the testator's general capacity but against his testamentary competency on the ground that his mentality had been affected by the insane belief that he was the victim of her persecution to such an extent that he was unable properly to weigh her claims to his bounty. The judgment of my brother Williams which I have had the advantage of reading, contains a summary of the evidence in the case and I shall refrain from stuffing the record with

of witnesses recapitulating it. Nothing turns upon #2 credibility/or conflict of

_ testimony. We are not interfering in any way with the findings of fact

of the learned trial judge. But we are at liberty,and indeed bound, to

a 2.

draw our own inference from them,Mersey Docks v. Proctor,1923 A.C.253,

at p.259. So far as burthen of proof is concerned it is well establishell that before a will can be pronounced valid,the Court or jury must be able, affirmatively ,on a review of the whole evidence,to declare that the tes- tator was of sound mind,memory and understanding,at the time of its execu- tion, Smith v. rdbitt, L.R.1 P.& B.398 at p.436; Landers v. Landers, 19 C.L.R. 222 at pp.255,236. The question then is whether this onus has been discharged. Since the appeal was argued I have had the opportunity of re-reading the transcript and of reviewing the evidence and it appears that the evidence of the experienced medical men called by both sides con- eurs in the conelusion that the testator's state of health was such that it was at least probable that his brain might bedome obsessed by a complet- ely irrational and incorrigible belief that some person with whom he was prought in frequent contact was tormenting him. In my opinion the facts show conclusively that he did acquire such a belief with regard to the appellant and that the delusion was such as a diseased mind would engender.