MULRAY vy OGILVY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE JJA and WADDELL AJA 10 October 1990, 12 June 1991 [1991] NSWCA 210 PROBATE — testamentary capacity — testator mistakenly claiming to have no relatives — no other explicit evidence of mental enfeeblement — whole estate left to neighbours who had befriended her — question whether they occupied her mind to exclusion of relatives with whom only minor contact — failure of neighbours to give evidence in support of claim for probate. Mahoney JA I agree with the judgment of Waddell AJA. Clarke JA I agree with the judgment and reasons of Waddell AJA. Waddell AJA The late Mrs Gladys Esther Baker of 22 Gardere Avenue, Curl Curl, died on 21 July 1985 aged 81 years. By her will dated 30 October 1984 she appointed the appellant, Kevin Douglas Mulray, a solicitor, and Donald Robert Klingenberg, to be her executors and trustees. The deceased left the whole of her estate to her brother, George Horace Hector Munro, provided he should survive her for one month and failing that to Mr Klingenberg and his wife in equal shares. Mr Munro predeceased the deceased, having died on 31 May 1985 aged 91. The respondent lodged a caveat against any grant of probate of the will. Mr Klingenberg renounced probate and Mr Mulray made an application for probate alone. A direction was given that he should apply for a grant in solemn form. The deceased was the last survivor of the seven children of her parents. Four of them had no issue. Two had issue who predeceased the deceased. The respondent, June Adele Ogilvy, is a daughter of a brother of the deceased, Charles Eric Munro, who died in 1953. She has five children, two of whom are married and have children of their own. The respondent's sister, Betsy Shirley Osborne, died in 1974 and is survived by four children. Accordingly, at the time of her death, the only relatives of the deceased were the respondent, a niece, and her children and grandchildren, and the children of Mrs Osborne. Mr Klingenberg has since 1969 been a full-time Minister with the Church of Christ. He and his wife had lived since before 1982 or 1983 close to and on the opposite side of the road to the deceased and had helped her and her brother in various ways. The deceased and Mr Munro had lived in the same house for many years before his death in a house which he had owned. He had made a will on the same day as did the deceased in terms which corresponded with hers. The appellant, Mr Mulray, is a solicitor who had known the deceased and her brother for many years. Bryson, J dismissed his application for probate of the will on the ground that "Mrs Baker was not on 27 (October 1984, the date on which she and Mr Munro gave instructions to the appellant for their will) and 30 October 1984 able to call to mind and consider the existence and claim on her bounty of the defendant, nor the existence and claims of the defendant's children and grandchildren and of the children of Mrs Osborne; and... that she was not then of sound disposing mind memory and understanding." His Honour found 2 UNREPORTED JUDGMENTS against the respondent's claim that the execution of the will had been obtained by the undue influence of Mr Klingenberg. His Honour relied primarily on the evidence given by the appellant that when he interviewed the deceased and Mr Munro to take instructions for their wills Mr Munro said that they did not have any living relatives, a statement which the deceased accepted. He was told by Mr Munro that they had discussed the matter and had decided to leave their estate "to them people across the road who had been so good to us" and that "without them we wouldn't even be here". His Honour also had regard to evidence of a number of surrounding circumstances. This included evidence given by the respondent and her daughter Sally, about the respondent's relationship over a great number of years, with one long interval, with the deceased and Mr Munro. There can be no doubt from the evidence of the respondent and others, which his Honour accepted, that the deceased had for many years been aware that the respondent and her children and grandchildren and the children of Mrs Osborne were her relatives. Accordingly, if the word "relatives" is to be understood in its ordinary and natural meaning, the statement by Mr Munro, which the deceased accepted, was untrue and could only have been made if both of them, through infirmity of mind, had forgotten the existence of their relatives. It is submitted for the appellant that the expression was used by Mr Munro not in its ordinary meaning but to refer only to their brothers and sisters. It is also suggested, but somewhat faintly, that it may have been used to make their decision to leave their property to persons who were unrelated more acceptable to their solicitor, the appellant, who gave evidence that he did not know they had any relatives. The appellant also submits that when regard is had to the whole of the evidence there is insufficient to justify a conclusion in the terms which his Honour reached. The legal principles which are applicable to the question of whether the deceased had testamentary capacity at the time she executed her will are not in doubt. In an often cited passage in Banks v Goodfellow (1870) LR 5 QB 549 at 565, Cockburn CJ said: "Tt is unnecessary to consider whether the principle of the foreign law or that of our own is the wiser. It is obvious, in either case, that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made." Cockburn CJ, at 568, quoted the following passage from the opinion of the Privy Council in Harwood v Baker (1840) 3 Moore PC 282 at 290, 291, 13 ER 117 at 120: "But their Lordships are of opinion, that in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his Will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his Will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is URJ MULRAY v OGILVY (Waddell AJA) 3 in those where the mind has been too much enfeebled to comprehend more objects than one, and more especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he executed this will, that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of (291) deliberately forming an intelligent purpose of excluding them from any share of his property." The emphasis is mine. These principles were applied by the Privy Council in Battan Singh v Amirchand [1948] AC 161, a case which is factually analogous to the present case. In that case the testator was a consumptive who died on the day he executed his will. In the will he purported to leave his estate to his "dear friends". The will also contained an express declaration in these terms I declare that I have no next of kin or blood relatives in Fiji or elsewhere who are known to me." In fact, this was not so. The only issue in the case was whether the testator had testamentary capacity when he executed the will, it having been proved that he knew and approved of the contents of the will. Their Lordships said at 170: "A testator may have a clear appreciation of the meaning of a draft will submitted to him and may approve it, yet if he was at the time through infirmity or disease so deficient in memory that he was oblivious of the claim of his relatives, and if that forgetfulness was an inducing cause of his choosing strangers to be his legatees, the will is invalid." After referring to Banks v Goodfellow, Harwood and Sivewight v Sivewight Trustees (1920) SC (HL) 63, their Lordships concluded at 171: "There is, of course, in the present case no question of insanity in the general or popular sense. But here the testator, who is proved to have been on the last stages of consumption and to have been reduced to extreme weakness, has declared in his will that he had no relations anywhere, though if he had been of sound mind in the sense of the cases cited he must have known that the statement was untrue." On this basis the will was found to be invalid. In Bull v Fulton (1942) 66 CLR 295, which related to the effect of insane delusions, Williams J said at 341: "A sound and disposing mind is one which is able to reflect upon the claims of the several persons who, by nature, or through other circumstances, may be supposed to have claims on the testator's bounty and the power of considering the several claims, and of determining in what proportions the property shall be divided between the claimants Burdett v Thompson (1873) LR 3 P and D 73." This passage has general application. His Honour referred to the special rules relating to onus of proof and procedure which apply to proceedings in which a claim is made for a grant of probate. In Hughes v The Public Trustee, Court of Appeal, 19 August 1960, unreported, Glass JA said: "The judgment of Dixon, J in Timbury and Anor v Coffee and Anor (1942) 66 CLR 277 at 283, makes it clear that if a will on its face is rational and is proved to have been regularly executed and attested, it carries with it a presumption that it was made by a person of competent understanding. If, on the other hand, those opposing its admission to probate prove in evidence circumstances which cast doubt on that conclusion, they have satisfied an evidentiary onus and there 4 UNREPORTED JUDGMENTS devolves upon the party propounding the will an ultimate legal onus of proving the testamentary capacity of the deceased." There is no dispute in the appeal as to the correctness of this statement. I turn now to consider the facts. His Honour made detailed findings about the degree of contact which the respondent and her family had with the deceased. It is not necessary to recapitulate these. The contact commenced when the respondent's father came from Queensland in about 1925 to live with his wife and children in Sydney. On occasions Mrs Baker cared for the children in her family home. The respondent married in about 1937 and from then until about 1975 there was infrequent contact except by way of occasional letters and Christmas cards. In about 1965 the deceased and Mr Munro made an unexpected visit to the respondent and her family who then lived at Burradoo. From 1975 the frequency of communication increased markedly. On one occasion in about that year the deceased telephoned the respondent and said "It's your long lost aunt wanting to talk to my long lost niece". A letter dated 4 May 1977 from the deceased to the respondent is in evidence. In part this said "What a lovely surprise to receive such a long letter from our 'lost' and only niece. It may seem strange, but you have been in our thoughts and conversations quite a lot lately". The letter went on to deal with family history in a way which fully recognised the relationship and existence of the children of the respondent and Mrs Osborne. Means of contact and telephone numbers were referred to. The letter closed "We are the only ones left now and as you get older it is hard to remember what day it is sometimes". His Honour says that the reference was to her brother who then lived at 22 Gardere Avenue while the deceased lived in her own house next door. His Honour referred to a number of particular contacts between the respondent and the deceased from 1980 onwards. On 27 June 1983 the respondent and her daughter Sally visited the deceased and Mr Munro. They were then both living in Mr Munro's house and the deceased's cottage next door was empty. The meeting took about an hour to an hour and a half. There was conversation but Mr Munro said practically nothing. He held the respondent's hand and appeared to be pleased to see the visitors. The deceased did not offer her guests any refreshment. A little while later the deceased offered to make her cottage available for any member of the family who would like to live in it saying that she would rather leave it empty than have strangers there. As appears from the appellant's evidence, about August 1983 the deceased and her brother began to consider making fresh wills. The respondent and her daughter paid another visit to the deceased and Mr Munro on 12 January 1984. Again Mr Munro was present but did not really participate. The deceased said "We are rather worried if anything happened to any one of us. What we will do, how we will manage" and was given assurances of family assistance. The respondent remarked to the deceased that the couch on which she was sitting was very comfortable and the deceased said "....It will probably be yours one day, dear". On 9 March 1984 the deceased telephoned the respondent and said "June you are own only living relative and George and I have been wondering what to do about our wills. We don't know quite how to go about it but we want to leave everything to you for you to help with the grandchildren's education or in any other way it might be helpful to the family". The deceased also said that she would telephone her solicitor. In another conversation on 11 March she made a similar statement. In a telephone conversation several months later, about May or URJ MULRAY v OGILVY (Waddell AJA) 5 June, she asked for photographs of the respondent's children and grandchildren. Some were sent to her although she did not ever acknowledge them. His Honour says this: "There are numerous indications apart from the communications between Mrs Ogilvy and Mrs Baker of which Mrs Ogilvy and her daughter speak that Mrs Ogilvy was aware of the existence of relatives. She had photographs of them in the house and referred to them to neighbours. Throughout her life Mrs Baker had had involvement in family affairs and had discharged practical responsibilities to her parents, her brothers and sisters and a brother-in-law after a sister's death, and she had cared for a nephew who died while young. A lack of awareness or indifference to relatives, or a disposition to disregard them and treat them as not really connected with her, would have been uncharacteristic of Mrs Baker." His Honour regarded the evidence of the appellant as generally reliable. He said that on 3 August 1983, at the request of the deceased, he looked out her will and her brother's will and on 8 August he went to see them about the making of new wills. Mr Munro said that they should make new wills but they were very worried because they didn't know how to go about this and the deceased said that they didn't know who to leave it to. His next contact was on 20 February 1984 when Mr Klingenberg telephoned to ask him to telephone the deceased during the week. He did so and she advised that he should await her instructions and said that she would telephone her back on Friday of that week. She did so and said that they were still troubled about making new wills and that she would consider the matter further and contact him again. On 24 February the deceased telephoned him to advise that she and her brother were still working out what to do with their wills. On 2 May 1984 Mr Klingenberg telephoned and informed him that the deceased and her brother were not well and would probably be contacting him concerning their wills and a power of attorney. However, neither of them did so. The next occasion on which he received any contact in relation to wills was at 8.30 on Saturday morning 27 October 1984 when Mr Klingenberg telephoned his home to say that the deceased and Mr Munro wanted to see him that day concerning their wills and powers of attorney. The appellant went to see the deceased and Mr Munro on that day. According to the appellant's evidence, the deceased said to him "We are still having difficulty in knowing what to do about our wills" and Mr Munro said "We have discussed the matter and we have decided to leave our estate to them people across the road who have been so good to us. Without them we wouldn't even be here". The deceased said "That is what we have decided". Before they gave him their final instructions he said to them "If you are having some difficulty, have you given thought to perhaps leaving some moneys for the Heart Foundation or the Cancer Research Fund". He said in answer to the question "Was there anything indicated by either of them in relation to whether there were any relatives" that he couldn't recall with certainty whether it was Mr Munro or the deceased who said "Our difficulty is caused by the fact that as you know, Kevin, we don't have any living relatives left". This last evidence is in conflict with evidence which the appellant gave in re-examination in an application concerning the renunciation of probate heard on 12 December 1986. Then he said that on 27 October 1984 Mr Munro did most of the speaking, with the deceased making interjections, or agreeing with things that he said and that Mr Munro said to him "We have been in a dilemma as to what to do ultimately, with our estates when we are gone, because we don't have any living relatives, all the family is gone, as you know Kevin" and that he 6 UNREPORTED JUDGMENTS believed that to be so. He said that it was then that he made the suggestions already mentioned about charities and they said that they had thought about it and they didn't want to do that and "We think we will leave it to them people across the road because without them we wouldn't even be here" and then identified the persons to whom they were referring as Mr and Mrs Klingenberg. It would seem that his Honour thought it best to adopt this earlier account of what was said on 27 October 1984 as more reliable than the evidence given by the appellant because he speaks in his reasons of "Mrs Baker's endorsing this statement". The question arose in the appellant's evidence as to whether the deceased or her brother had said on any previous occasion that they did not have any relatives. According to the appellant's evidence on the interlocutory application he was told emphatically on several previous occasions "We don't know, Kevin, what to do as you know all our family is dead. We don't have any living relatives". His evidence in this proceeding was equivocal, at one stage stating that there had been no previous statement to that effect and subsequently that there had been such statements. His Honour observed that the appellant had diary sheets relating to the attendances he made in connection with making the new wills which he carefully consulted and considered while giving his evidence but that these were not very full and did not set out all the matters of which he gave evidence. The appellant said that the entries were only for costing purposes. The entries, for instance, contained no note of anything said on any of the occasions of which he gave evidence except the concluding words which indicated what was to be done. As to there having been earlier mention of there being no relatives his Honour says this: "T do not think that I should turn aside from the obvious and only reasonable conclusion on evidence just because there were other occasions on which, in language which has not clearly been proved, Mrs Baker may have told Mr Mulray to the same effect, that she had no living relatives. Mr Mulray's evidence about this, which I accept was given with sincerity, emerged in the way which rather shook my confidence in it. However if it is correct, the fact that on other occasions she made such statements to Mr Mulray does nothing to assist a conclusion that she was of sound disposing mind, memory and understanding at the relevant time; rather it would seem to show her wavering over a period of months earlier, telling her solicitor one thing while communicating readily with an actual living relative on the other hand from time to time, with assurances of bounty." On 27 October 1984 the deceased and Mr Munro gave instructions to the appellant to prepare general powers of attorney in favour of Mr Klingenberg. According to the appellant's diary note, he prepared the wills and the powers of attorney and then telephoned the deceased. Mr Klingenberg answered and he arranged with him that he would call at 9 am the following day. On 30 October he took the wills and the powers of attorney to the deceased and Mr Munro. Evidence of the execution of the will was given by Wendell Don Riddle, a Minister of the Church of Christ who had come to Australia in 1981 to serve the Church. He had been a member of the same team in the Church organisation as Mr and Mrs Klingenberg. He had first met the deceased in about 1982 or 1983 when he had been invited to take a meal with the Klingenbergs and they were cooking a hot meal for the deceased and Mr Munro. After that he met the deceased about one hundred times when the Klingenbergs were taking hot meals URJ MULRAY v OGILVY (Waddell AJA) 7 to her. Mr Riddle and his wife were present for the purpose of the execution of a will, presumably at the request of Mr Klingenberg. He said that the appellant read the will to the deceased and then asked her if that was what she wanted to sign or wanted to do and she said, yes. She then signed the will and he and his wife signed as witnesses. It is clear that on the same occasion she signed a power of attorney in favour of Mr Klingenberg but he did not recall that at all. Mr Riddle was not cross-examined to suggest that either the deceased or Mr Munro exhibited any signs of mental enfeeblement His Honour regarded the facts which have so far been summarised "as of prime importance and of disposing of the case". He says: "T regard the proof of Mrs Baker's lack of testamentary capacity as plain and obvious and I could only find that there was testamentary capacity by closing my mind to the obvious and by disregarding the plain meaning of her statements to her solicitor." He goes on to make some observations on some of the other facts of which evidence was given and turns first to the relationship between the deceased and Mr Klingenberg. He did not give any evidence except in relation to a subpoena to produce documents which had been served on him. His Honour refers to the role which Mr Klingenberg played in communicating with the appellant as solicitor for the deceased and to the fact that it was he who let the appellant into the house when he attended for the execution of the will. The appellant asked him to leave the premises and he did so. His Honour refers to an occasion when Mr Klingenberg spoke on the telephone to the appellant about the affairs of the deceased for a quarter of an hour. He mentions the absence of any evidence as to how the necessity arose for general powers of attorney to be given to Mr and Mrs Klingenberg. He accepts the evidence of the defendant that on several occasions in 1984 before October the deceased made statements to her to the effect that the Klingenbergs had taken her and her brother over completely. He notes that it is remarkable that Mr Klingenberg, who knew of the respondent because she had sent him a letter to which he did not reply, had failed to communicate with the defendant on occasions such as the death of Mr Munro or when the deceased had been admitted to hospital or, indeed, on her death. Finally, his Honour comments that these matters did not enable him to come to a finding for or against the deceased having been of sound disposing mind, memory and understanding. On the appeal there has been debate as to what inference should be drawn from the failure of the plaintiff to call Mr Klingenberg and from the failure of either of the parties to call Dr Egan, a general medical practitioner, who attended the deceased. His Honour says that evidence about the association between Mr and Mrs Klingenberg and the deceased did not clearly establish that they were in a position to give any evidence establishing the state of the deceased's powers of recollection and general ability. His Honour said that he had to assume that each party had considered what evidence might be available to it and had brought forward whatever evidence it was thought he should have regard to. On the appeal the respondent submitted that a number of inferences adverse to the case for the appellant should be drawn from the failure to call either Mr or Mrs Klingenberg. It is said that possible inferences are that the deceased was so infirm that she required Mr Klingenberg to deal with her solicitor and to arrange for attesting witnesses and to attend at her house to open the door when the appellant came to have the wills and powers of attorney executed. 8 UNREPORTED JUDGMENTS It seems to me, however, that the failure to call Mr or Mrs Klingenberg has another significance. The evidence of the part which they played in the life of the deceased indicates that it was so substantial that, if her mind were enfeebled, their presence may have been sufficient to shut out of consideration any claims which the respondent and her children and grandchildren and the children of Mrs Osborne might have had to consideration. This inference is, in my opinion, one which can be more readily drawn in the absence of any evidence from the Klingenbergs who could have said what part they had played in the life of the deceased and had given the Court the benefit of their observations of her behaviour. Their failure to give evidence is significant bearing in mind that they are the only beneficiaries under the will of which a grant of probate is sought. See Qantas Airways Ltd v SS Pharmaceutical Co Ltd, Court of Appeal 20 July 1990, unreported, per Gleeson CJ at 9. The failure to call Dr Egan seems to me to be of very much less significance. There is no evidence about the extent of the medical problems of the deceased or as to how often he saw her. There is no suggestion that she suffered from any form of dementia. It is submitted for the respondent that her mental capacity had been infeebled by old age so that, in their absence, she was unable to recall any of her relatives and in particular the defendant. There is nothing to suggest that Dr Egan was not available to be consulted by the solicitors for each of the parties. It is to be inferred, therefore, that his evidence would not have been of assistance to either case. The appellant submits that, as a matter of textual analysis in the context of the facts as they have emerged in the evidence, the utterance about there being no relatives does not evidence a failure to remember the existence of relatives and, in particular, that of the respondent. It is said that the utterance is the only piece of evidence which indicates mental infirmity. His Honour specifically found that there was no evidence which established that the deceased had failing powers of memory in any other respect or other failing mental powers or suffered from confusion in any way. There was no medical evidence to support failing memory. Two psychiatrists were called by the respondent in an attempt to draw conclusions from circumstances which they were asked to assume, and which, presumably, it was hoped would be established by the evidence, which would be favourable to her case. Their evidence was inconclusive and was not relied upon by his Honour in his reasons nor by the parties on the appeal. Presumably Dr Egan was not able to offer any evidence which would have assisted. It is said, therefore, for the appellant that the evidence on which his Honour relied is quite remarkable and should not be taken at face value. The appellant submits that the evidence shows that when the will was executed it was executed in a state of understanding, acknowledgment and agreement. The evidence of the only one of the two attesting witnesses who was called, Mr Riddle, has already been mentioned. The appellant gave evidence of what happened when the two wills were executed. The deceased executed hers first. Before she did so he read it out to her. When he finished she said "Thank you Kevin". He then said to her "Well, if you approve that I will now read George's will to him" and he did so. Mr Munro said "That is fine, Kevin. Let's get them signed". The two wills were then signed and witnessed. It is submitted, in effect, that there is nothing on the evidence relating to execution of the will which suggests any shortcoming in testamentary capacity and this supports an inference URJ MULRAY v OGILVY (Waddell AJA) 9 that the reference to there being no living relatives when instructions were given should be understood in a rational rather than an irrational sense. The appellant submits that the evidence shows that the deceased and Mr Munro had been considering what they should do with their wills since August 1983. In their previous wills, which had been made in 1972, each had left their estate to the other provided she or he should survive for a period of one calendar month and in the event of that not happening to a sister, Ruby Priscilla Fisk. She, however, had died, without issue, in August 1973, that is ten years before. It is said that between the period August 1983 to 27 October 1984 the deceased was in contact with the respondent on a number of occasions and that the claims of the respondent and her children and those of Mrs Osborne could not have been absent from her mind, and from that of Mr Munro, during the period when they were thinking about and discussing between themselves what they should do with their wills. This, it is said, is a circumstance which indicates that the omission of any of their relatives from their wills was an act of deliberate choice by the deceased and Mr Munro and that the utterance should not be understood in an irrational sense. In this respect the appellant draws attention to the terms of the letter of 4 May 1977 which has already been mentioned. It is a letter written in a firm hand and expressed in such a way as to indicate that the writer had full possession of her faculties. It is submitted that the words "George has built a nice little cottage next to my place. We are the only ones left now" refer to the previous death of all their brothers and sisters and indicate that that must have been the sense in which she assented to the utterance about relatives made by Mr Munro. In this respect the appellant also relies upon the account given by him in the interlocutory application already mentioned, "because we don't have any living relatives, all the family is gone, as you know Kevin" as indicating that the word "relatives" was used in the sense of brothers and sisters or the family of their parents. As already mentioned, his Honour seems to have preferred this statement of what happened, although he did not draw from it the inference for which the appellant now contends. The submissions which the appellant makes against the correctness of his Honour's decision seem to me to have a good deal of force. However, they are outweighed, in my opinion, by the nature of the utterance when regard is had to the contact between the respondent and the deceased and Mr Munro during the twelve months or so which preceded their giving instructions for their will and by the circumstances that they regarded the Klingenbergs as having taken them over. It seems to me that what Mr Munro said, in the version on which the appellant relies, was that they had no family and no relatives and that this was a clear indication that neither of them had given consideration to the claims which the respondent and other relatives might have. It is perhaps unwise to place too much emphasis on the appellant's account of the actual words used. What is clear is that neither the deceased nor Mr Munro had remembered to take into consideration the claims of their actual relatives. In my opinion, his Honour came to the correct conclusion. That conclusion is supported by the failure of Mr and Mrs Klingenberg to have given evidence. If it comes to a matter of onus, then, in my opinion, the position is that there was evidence of the regular execution and attestation of a will which was rational on its face in that it made provision for persons who had some claim on the bounty of the deceased, and omitted others who had some but not a great claim, but the presumption that it was made by a person of competent understanding 10 UNREPORTED JUDGMENTS was displaced by evidence of the utterance on which the respondent relies and on the surrounding circumstances. The ultimate legal onus which then devolved upon the appellant of proving the testamentary capacity of the deceased has not been satisfied. For the foregoing reasons I propose that the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: C Gee QC/E Dearn Counsel for the Respondent: CSC Sheller QC / JE Marshall Solicitors for the Appellant: Michael P Carroll and Peter S Knudsen Solicitors for the Respondent: Tzovaras and Co