BOREHAM V. PRINCE HENRY'S HOSPITAL & OTHERS.

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43 Gourley, Gort. Print, Met,

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IN THE HIGH COURT OF AUSTRALIA

BOREHAM

PRINCE HENRY'S HOSPITAL & OTHERS

REASONS FOR JUDGMENT

BOREHAM

ve

PRINCE HENRY'S HOSPITAL AND ORS.

ORDER

Appeal dismissed with costs.

BOREHAM

ve.

PRINCE HENRY'S HOSPITAL AND ORS.

JUDGMENT

WILLIAMS Jo

BOREHAM

PRINCE HENRY'S HOSPITAL AND ORS.

JUDGMENT WILLIAMS J. FULLAGAR J. TAYIOR J.

This is an appeal from an order of the Chief Justice of the Supreme Court of Victoria discharging an order nisi granted on the application of Ronald James Boreham the executor named in a will purported to have been made on 28th August 1950 by Samuel Smith who died on 18th August 1953 calling upon nine caveators consisting of seven public hospitals, the Royal Victorian Institute for the Blind and the Australian Red Cross Society to show cause why probate of this will should not be granted to the applicant. :

The making absolute of the order nisi was opposed by the caveators on the following grounds: "1. 'That the will was not executed by the Testator. 2. That the will was not executed in conformity with Wills Act. 3. That there was want of testamentary capacity on the part of the testator existing before the time of execution of the said Will and due to insanity or imbecility the symptoms of which first manifested themselves in or about the month of December 1949. 4. That undue influence was exercised upon the testator by CHRISTINA MAUD BOREHAM. 5. That the testator did not know or approve the contents of the Will." Of these grounds his Honour decided the first, second and fourth in favour of the appellant and found it unnecessary to give a decision on the fifthe But on the third ground he decided that the appellant had not discharged the onus of proof that the testator had testamentary capacity on 21st August 1950, the date that

instructions for the will in suit were given to a solicitor, Mro Le Fo Russell. He added that the evidence warranted an affirmative finding that the testator did not have testamentary capacity on this date. The executor is the appellant in this Court and the caveators are the respondents. At the date of the purported will Samuel Smith, whom we shall hereafter call the testator, was 84 years of age. A great deal of evidence was given on the hearing which his Honour has reviewed at length and we shall not attempt more than an outline of its more relevant portions. Suffice it to say that the testator was, in his early years, an orchardist but that he had retired from this occupation some time prior to 1937 and in that year was living with his wife in a house which he owned at 792 Station Street, Box Hill. They had no children. In 1937 they agreed upon a testamentary plan ultimately to leave their joint property to charity. Pursuant thereto they each made a will on 19th October 19357. By her will Mrs. Smith left the whole of her property to the testator if he survived her and, if he pre-deceased her, to certain charities. By his will the testator devised the house at Box Hill and bequeathed a legacy of £300 to his wife and gave her a life estate in the residue of his property with remainder to these charities. He explained to Mr. J. He Fulton, a solicitor practising at Box Hill, who prepared these wills, that as they had no children and his relatives were amply provided for they had décided