High Court of Australia
ORIGINAL ~~ XR IN THE HIGH COURT OF AUSTRALIA
| WING & ANOR.
ow MMONGRIERF & ANOR+
REASONS FOR JUDGMENT
i Judgment delivered at....Syéney 4.4) Gourley, Gort, Print, Me, i Monday, 1$th November, 1954.
6.7105/51
VY
WING & ANOR. Ve
MONCRIEFF & ANOR.
ORDER
Appeal dismissed with
costs.
WING & ANOR.
MONCRIEFF & ANOR.
JUDGMENT. DIXON C.J.
Bo
WING & ANOR.
Ve
MONCRIEFF & ANOR.
I have had the advantage of reading the reasons prepared by Kitto J. and agree in them.
But I desire to add that, notwithstanding the fact that the reasons given by Myers J. from whom the appeal comes contain such specific estimates of the degree of credit his Honour attached to many of the witnesses, I think that a proper application of the familiar rules governing appeals on questions of fact must preclude the success of the appeal. In this Court there has been a recent recapitulation of the sequence of decided cases containing formula- tions of these rules: Paterson v. Paterson, 1953 A.L.R. 1095.
At the same time if our decision were to be guided simply by the evidence as it appears upon the printed page I must say that, considered as a whole, it leaves me with a strong impression that in April 1951 the testatrix no longer possessed a sound. di sposing mind. In saying this I put aside the testimony of Mrs. Moncrieff, on which I.should not be prepared to place reliance. I do not think that to adopt the conclusion that at that time the testatrix no longer had testamentary capacity implies any reflection on Mr. Bennett who prepared her will. In a case of this kind where an old woman whose faculties are fast declining makes a will it is very common indeed for quite intelligent witnesses to give strikingly different pictures of the Geceased and of her physical and mental condition, a thing which 'is amply illustrated by the evidence in this case. All a court can do is to consider their respective opportunities of forming discerning judgments, the circumstances in which they have observed the deceased and the grounds upon which the negative con- elusions have been formed as well as the grounds of the affirmative impressions and then to weigh the whole evidence and so arrive ata
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