Dwyer v Vindin [1906] HCA 49

Sypyry, Ang. 20.

Griffith C.J., Barton and O'Connor JJ.

HIGH COURT (1906.

[HIGH COURT OF AUSTRALIA.]

DWYER . A e , é 5 ¥ t APPELLANT ; AND VINDIN . ' ' F 5 ; é . RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Practice—Special leave to appeal—Question of fuct—Probate of will—Issues of unsound mind and undue influence—Costs of unsuccessful caveator.

Although as a general rule an unsuccessful defendant in a probate suit will not be ordered to pay the costs, if he had an interest in opposing probate and the will was made under circumstances which naturally tended to raise a suspicion of testamentary incapacity or undue influence, there may, neverthe- less, be other circumstances rendering the defendant's opposition unreasonable and justifying an order for costs against him. Ina case where the question whether a defendant had by his conduct disentitled himself to take advantage of the general rule or not depended upon the facts special leave to appeal to the High Court was refused.

Special leave to appeal from the decision of Walker J. refused.

Motion for special leave to appeal.

The appellant lodged a caveat against the granting of probate of his wife's will on the ground that it had been obtained by undue influence on the part of the respondent, and that the testatrix, at the time when she made the will, was not of a sound and disposing mind and did not understand the contents of the will. The issues so raised were tried in a probate suit before Walker J., in which the respondent was plaintiff and the appel- lant was defendant. The will was proved in solemn form, and at the conclusion of the suit the Judge granted probate to the respondent and ordered the appellant to pay the costs of the suit so far as they were caused by his opposition to probate.

4 OLR.| OF AUSTRALIA.