Allan v Morrisona
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1900 |
| Date | 1900 |
| Year | 1900 |
| Court | Privy Council |
Lost Will - Evidence - Presumption that it was Destroyed by Testator - Presumption against Fraudulent Abstraction.
Where a will duly executed, traced to the testator's possession and last seen there, is not forthcoming on his death, the presumption is that it was destroyed by himself. To rebut it there must be sufficient evidence that it was not destroyed by the testator animo revocandi; and held in this case that concurrent findings that it had not been rebutted could not be disturbed. There is a presumption against its fraudulent abstraction either before or after his death, but the circumstances which render such abstraction possible must be taken into account in arriving at the result of the evidence.
APPEAL from a decree of the Court of Appeal (May 25, 1899) affirming a decree of Denniston J. (April 11, 1899) in the Supreme Court of New Zealand, in the District of Canterbury.
The plaintiff, as the executor of Morrison's will, dated March 22, 1893, propounded the draft of the will, and claimed that probate in solemn form should be granted to him until the original will should be found and brought into the proper office of the Court. The defendants were the widow Lavinia Morrison (the respondent) and the next of kin of the testator. Only the respondent defended the action.
It was admitted that the will had been duly executed, but it could not be found after the death of the testator by those who searched for it on behalf of the plaintiff, and it was not produced. The plaintiff alleged that it never was revoked or destroyed by the testator, and that it was at the time of his death a valid and subsisting will, and the last will and testament of the deceased; and he tendered for probate what was proved and admitted to be a correct draft of it. The respondent alleged that the said will had been revoked by the testator.
Both Courts held that the onus was upon the appellant to rebut the presumption of law which arose under the circumstances stated in their Lordships' judgment that the will was destroyed by the testator animo revocandi, and found that the evidence failed to discharge it.
Deane, Q.C., and Northcote, for the appellant, contended that the Courts below had taken an erroneous view as to the onus probandi. Under the Wills Act, if the will is proved to have been duly executed and cannot be found, the onus is on those who allege that it has been destroyed animo revocandi. The evidence in this case was quite insufficient to rebut the presumption of law that a will having been duly executed has not been revoked; and the evidence in fact did not suffice to prove that it had ceased to be in existence at the time of the testator's death. With regard to the view adopted by the Courts below, it was contended that no presumption of destruction animo revocandi arose simply because a duly executed will is not forthcoming at the testator's death. To raise such a presumption it must be shewn that the same was in the actual and exclusive possession of the testator, and in such circumstances as to render it reasonably probable that he could personally obtain and destroy it. It was contended that the evidence in this case did not establish but, on the contrary, disposed of the existence of a reasonable probability to that effect. It shewed that the will was not in the actual and exclusive possession of the testator, but was accessible to other persons, some of whom were interested in thwarting the testator's testamentary intentions. But whatever presumption of law might arise, that the testator did not intentionally destroy the will was completely rebutted by the evidence which it was contended when closely examined was sufficient to lead to a moral conviction that he did not so destroy it even if it failed to exclude every possibility of his having done so. It was further urged that the testator's conduct with...
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Violet Nicholas v Wilbert Elliston
...abstraction by another person in cases of this type. Both sides relied on the principle enunciated in the Privy Council case of Allan v Morrison (1900) 1 A. C 604, an appeal from the Court of Appeal in New Zealand, affirming the decree of the Supreme Court. The appellant, an executor of a W......
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Oops! I lost my Will ' Lost wills and other things to think about after you sign your Will
...has a related presumption that the will was not fraudulently abstracted either before or after the testator's death: see Allan v Morrison [1900] AC 604, 12Succession Act 2006 (NSW) s 11(1)(e). 13 Cheese v Lovejoy (1877) 2 PD 251, 253 (James LJ). 14 In the Goods of Lewis (1858) 164 ER 615; R......
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Diverse probleme rondom die bestaan en geldigheid van 'n testament by die dood van die erflater (deel 2)
...ook Kahn (2003) 153. 141 Per abuise vernietiging word hieronder bespreek.142 Vgl Curley v Duff (1985) 2 NSWLR 716 719; Allan v Morrison [1900] AC 604.Sien Sorkos v Cowderoy 2006 CanLII 31722 (CA) waar die seun van dietestatrise aanvoer dat haar tweede testament waarin sy Sorkos, ’n mansaam ......