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 capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it.’
Held: The will was effective. English law gives testators ‘absolute freedom’ in the disposal of their property. However the court pointed to ‘a moral responsibility of no ordinary importance . . the instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the objects of their affection.’ To disappoint reasonable expectation of this kind is to ‘shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law’. English law ‘leaves everything to the unfettered discretion of the testator’ on the assumption that ‘the instincts, affections and common sentiments of mankind may safely be trusted to secure, on the whole, a better disposition of the property of the dead’ than stereotyped and inflexible rules. The court considered the test for testamentary capacity.
Cockburn CJ said: ‘It 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 (of making a will) 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.
Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.’
Cockburn CJ
(1870) LR 5 QB 549, [1870] UKLawRpKQB 74, (1869-1870) LR 5 QB 549
Commonlii
England and Wales
Citing:
Approved – Greenwood v Greenwood 1776
‘If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.’ . .
Approved – 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 . .
Cited – Den v Vancleve 1819
When asking as to the capacity of a testator, the court should ask: ‘was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?’ and ‘By the terms ‘a sound and disposing mind . .
Cited – Burdett v Thompson 1878
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Cited by:
Cited – Ewing v Bennett CA 25-Feb-1998
The claimant appealed admission to probate of the will of the deceased, arguing that she had not had testamentary capacity when it was made.
Held: There was evidence of the beginnings of dementia, but at the tme when she had made the will, the . .
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 – Thompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
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 . .
Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
Cited – Billington (By Billington Her Next Friend) Billington, Warburton v Blackshaw CA 16-Dec-1997
The court had set aside a conveyance at an undervalue by a mother to one of her children. There was evidence to doubt her capacity at the time.
Held: There was evidence of senile dementia, and the presumption applied. The judge had dealt . .
Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Kostic v Chaplin and others ChD 15-Oct-2007
The deceased had for several years suffered a delusional disorder. The validity of his last two wills was challenged. In one had had left his entire estate to the Conservative Party.
Held: The wills were invalid. It was clear that when made, . .
Cited – Judy Ledger v Wootton and Another ChD 2-Oct-2007
A grant of probate was challenged, the claimant stating that, at the time of the will, the deceased had lacked testamentary capacity.
Held: The deceased had a history of mental health difficulties. It was for the person proposing a will to . .
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 – Carr and others v Beaven and others ChD 29-Oct-2008
The parties contested the validity of a will on the basis of incapacity.
Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the . .
Cited – Scammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
Cited – Zorbas v Sidiropoulous (No 2) 10-Jul-2009
Austlii (Supreme Court of New South Wales – Court of Appeal) SUCCESSION – Testamentary capacity – Testatrix gravely ill in hospital – While in hospital will made changing earlier will – Whether testatrix had . .
Cited – 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 – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Cited – 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 . .
Cited – Hawes v Burgess and Another CA 19-Feb-2013
The appellant challenged pronouncement against the validity of wills on the ground of lack of testamentary capacity and want of knowledge and approval.
Mummery LJ said: ‘Although talk of presumptions and their rebuttal is not regarded as . .
Cited – Schrader v Schrader ChD 11-Mar-2013
Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the . .
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, Health
Leading Case
Updated: 18 December 2021; Ref: scu.181899
