Worth v Clasohm [1952] HCA 67

High Court of Australia Dixon C.J. Webb and Kitto JJ. Worth v Clasohm [1952] HCA 67

ORDER Appeal allowed. Order of the Supreme Court of South Australia discharged. In lieu thereof, pronouncement in favour of the alleged last will and testament of Mary Jane Worth deceased being the script bearing date 14th December 1949 now in the Probate Registry of the Supreme Court. Costs of the suit and of the appeal as between solicitor and client to be paid out of the estate.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 11 Dixon C.J., Webb and Kitto JJ.

One Mary Jane Worth, a widow, died on 29th August 1950 at the age of eighty-six. She had executed a document purporting to be her last will on 14th December 1949. The present appellant, being named in that document as the residuary devisee and legatee, brought an action in the Supreme Court of South Australia to have its validity as a will established. The defendants in the action, the respondents to this appeal, are brothers of the deceased and were sued as having entered a caveat and as being two of the persons entitled to share in the deceased's estate in the event of her intestacy.

The defendants put the plaintiff to the proof of due execution of the document he propounded, and they alleged that at the time of the purported execution of the document the deceased was not of sound mind, memory and understanding. By a counterclaim they asked that the court should pronounce against the will, hold that the deceased died intestate, and should grant letters of administration to such person as it should deem fit.

The action was tried by Reed J. Due execution of the document as a will was proved, and the contest was confined to the issue of testamentary capacity. The learned judge found that at the date of the will the deceased, who may be called the testatrix, was suffering from senile degeneration and was subject to two delusions. One delusion was that people were stealing her possessions, but his Honour seems to have put this delusion on one side as having had no bearing upon her testamentary dispositions. The other delusion was that her food was being poisoned by certain relatives with whom she was living, and this delusion the learned judge thought was calculated to affect the mind of the testatrix in the matter of her dispositions. His Honour considered that, having regard to the course of a series of dispositions which she made over a period of some months before the date of the will propounded, a suspicion arose that her mind was affected by this delusion; and, feeling unable to say that the plaintiff had satisfied him judicially that the will was that a of a free and capable testatrix, he dismissed the action. From his decision the plaintiff now appeals.