Summary
The Court restored rejection of probate because the testator had validly revoked the will by a registered cancellation deed. Expert comparison of thumb impressions, the attesting witness and the scribe supported execution; the High Court’s doubts about incapacity and impersonation lacked foundation. The certified cancellation deed and expert report had been exhibited without objection. A curable objection to the mode of proof could not first be raised on appeal, depriving the other side of an opportunity to produce the original. The appeal was allowed without costs.
Issues
- Whether the evidence established valid execution of the registered cancellation deed.
- Whether a party could first challenge the mode of proving the certified cancellation deed on appeal after its unopposed exhibition at trial.
Held
- The attesting witness, scribe and expert gave unshaken evidence supporting the cancellation deed. The High Court insufficiently considered that evidence and inferred incapacity and impersonation despite the absence of supporting cross-examination or suggestions on impersonation. (¶¶ 6, 13, 14, 15, 16, 26)
- Affixing a thumb impression rather than signing did not itself justify doubting the deed. The testator’s other deeds also bore thumb impressions, and expert comparison supported their common authorship. (¶¶ 17, 18)
- An objection to an irregular but curable mode of proof must be raised when the document is tendered. Allowing the certified copy and expert report to be marked without objection prevented the applicant from first demanding the original on appeal; timely objection would have allowed the defect to be addressed. (¶¶ 14, 16, 19, 20, 21, 22, 23, 24, 25)
- On the evidence, the trial court correctly found the testator medically fit and the will revoked by him. The High Court’s probate grant was set aside and the trial court judgment restored, without costs. (¶¶ 25, 26, 27)
Result
Appeal allowed without costs; High Court probate grant set aside and trial court’s rejection of probate restored.