The court considered the effect of a testator having lost capacity at the time he executed his will, saying that, the principal inquiry as to testamentary capacity will be directed to the time when the instructions were given.
Held: It is sufficient if the testator, at the moment of execution, believes the Will to be and if the Will is in accordance with the instructions previously given.
The Board saw no reason in this case to question evidence that the testator was of sound mind when he executed the will, but cited Parker to say that the will might have remained effective if executed in accordance with the conditions in Parker -v- Felgate.
As to the evidence of the attesting witnesses: ‘The question, therefore, comes to this: Having regard to all the circumstances of the case, ought the diagnosis of Dr. Fonseka and Dr. Rockwood, who were not present when the will was executed, to outweigh and prevail over the testimony of eye-witnesses based upon the evidence of their own senses?’
Lord Uthwatt said: ‘Reports of judicial and parliamentary proceedings and, maybe, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings. As regards reports of proceedings of other bodies, the status of those bodies taken alone is not conclusive and it is necessary to consider the subject-matter dealt with in the particular report with which the court is concerned. If it appears that it is to the public interest that a particular report should be published, privilege will attach.’
Lord MacNaghten, Lord Uthwatt
[1901] UKPC 16, [1901] AC 354, [1901] 70 LJPC 46, [1901] 84 LT 371
Bailii
Citing:
Approved – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .
Cited by:
Cited – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
Cited – In the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall v Batten and Another 1952
The deceased shortly before his death wrote and signed a statement called his ‘Last wish’ which provided that certain persons were to have all his property. His instructions were embodied in a will which he executed just before he died. The will was . .
Persuasive – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.421022