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 instructions, it was upheld, applying Parker v Felgate. The appellant, challenging the will, said that that case was not good law.
Held: The appeal failed. The case of Felgate was based on established case law principles. It was necessary to distinguish between knowledge and approval and capacity: ‘testamentary capacity is a prerequisite to knowledge and approval because if the former is not shown there is no need to look for the latter. ‘
Moore-Bick LJ
[2010] EWCA Civ 840, [2010] WLR (D) 196, (2010) 13 ITELR 405, [2011] 2 WLR 1086
Bailii, WLRD
Wills Act 1837
England and Wales
Citing:
Cited – 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 . .
Appeal From – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
Cited – Smith v Tebbitt 1867
. .
Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Costs at First Instance – Perrins v Holland and Others ChD 21-Oct-2009
. .
Cited – Burdett v Thompson 1878
. .
Cited – Boughton v Knight 1873
The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and . .
Cited – Seeman v Seeman 22-Dec-1752
The testator had made his will in August 1735 leaving several pecuniary legacies. At some time some of those legacies had been obliterated. He died in 1751. One of the disappointed legatees challenged the will on the grounds that the obliteration . .
Cited – Moore, Formerly Hacket v Hacket 30-Apr-1755
The will was executed in conformity to instructions, established, though the testator had become incapable before the will was read over to him. William Hacket, deceased, made his will, dated 27th May, 1754 : his wife executrix and residuary legatee . .
Cited – Moore, Formerly Hacket v Hacket 30-Apr-1755
The will was executed in conformity to instructions, established, though the testator had become incapable before the will was read over to him. William Hacket, deceased, made his will, dated 27th May, 1754 : his wife executrix and residuary legatee . .
Cited – Sandford v Vaughan And Others 1809
The court heard a plea regarding a number of testamentary papers left by Sir John Chichester. In relation to the fifth paper Sir John Nicholl observed: ‘Where an unfinished draft is propounded, it must be shown that the deceased was prevented, by . .
Cited – Charles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
Persuasive – Pereira v Pereira; Perera v Perera PC 23-Mar-1901
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 . .
Cited – Battan Singh v Amirchand PC 1948
(Supreme Court of Fiji) The will was declared invalid because the testator had lacked testamentary capacity, although the judge had rejected the allegation that the will was invalid for want of knowledge and approval.
Held: Lord Normand . .
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 – Billinghurst v Vickers, Formerly Leonard 23-Nov-1810
(Ecclesiastical Court) The opinion of the Court has already been given on the principal part of this case. It has been stated that the first part of this will, which was alleged to be in the handwriting of the deceased, is sufficiently proved ; but . .
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 . .
Cited – Re Flynn ChD 1982
The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge . .
Cited – Paske v Ollat 15-Nov-1815
(Ecclesiastical Court) The will was written by the testator’s attorney and contained a bequest in his favour.
Held: The will was upheld. Sir John Nicholl said: ‘the law of England requires, in all instances of the sort, that the proof should . .
Cited – Ingram v Wyatt 1827
The will appointed the testator’s agent and attorney as both executor and almost universal legatee.
Held: These circumstances called for more than evidence of due execution. Sir John Nicholl said of the testamentary capacity: ‘In order to . .
Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Appeal from – Perrins v Holland and Others ChD 21-Oct-2009
. .
Cited – Buckenham v Dickinson ChD 1992
The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples’ homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything . .
Cited by:
See Also – Perrins v Holland and Others CA 8-Dec-2010
The court heard an appeal as to costs. . .
Cited – Gill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
Cited – Gill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
Cited – Ram and Another v Chauhan and Another Misc 19-Jul-2017
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 18 December 2021; Ref: scu.421003