Hill v Van Erp [1997] HCA 9

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh and Gummow JJ Hill v Van Erp [1997] HCA 9

ORDER Appeal dismissed with costs

Cur adv vult

The following written judgments were delivered: —

18 March 1997 Brennan CJ.

Mrs Olive Eileen Currey wished to change her will. Her will had been prepared by the appellant, Mrs Hill, a solicitor practising in the Brisbane suburb of Paddington. Mrs Currey asked Mr Van Erp, a neighbour, to ask Mrs Hill to call on her. She did so. On or about 3 December 1990, Mrs Currey gave Mrs Hill instructions for a new will. In accordance with her instructions, Mrs Hill drew a will cl 4 of which read as follows:

I Give Devise and Bequeath my house property situate 25 Perrott Street, Paddington, Brisbane in the said State, and the contents therein not previously bequeathed unto my son William John Axen and my good friend Rona Van Erp as tenants in common in equal shares. Clause 3(b) of the will also provided that Rona Van Erp should be given Mrs Currey's leather lounge suite, ornate glass top table and antique clock. Rona Van Erp is the spouse of Mr Van Erp as Mrs Hill knew.

On 7 December 1990, Mrs Hill brought the draft will to Mrs Currey's house. Mr Van Erp was present. Mrs Hill read the draft will to Mrs Currey. Mrs Currey signed the will as testatrix. Mrs Hill signed as one attesting witness. Mrs Hill asked Mr Van Erp, who was the only other person present, to sign as the second attesting witness. She pointed to the place where he was to sign and, according to his evidence, he signed "because Mrs Hill asked me to". No advice was sought by him or given to him as to the effect on the gift to his spouse of his being an attesting witness.

The consequence of Mr Van Erp's signing as an attesting witness was to attract the operation of s 15(1) of the Succession Act 1981 Q which reads as follows: