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 quantity of intellect which is requisite to constitute testamentary capacity is eminently a practical question that does not depend solely on scientific or legal definition. Sir James Hannen said: ‘But it appears to me that it would be highly dangerous to encourage the notion that because a person is eccentric in his habits of life he is therefore incompetent to make a will. There was nothing in the case which led me to suspect that Sir Charles [the executor who propounded the will] had ever heard anything about the testator which went beyond eccentricity. His having bands of music at his house, the mode in which he exercised his horses, his shooting rooks in company with his servants, those and similar acts fell far short of evidence to establish incapacity . . The circumstances that made an impression on my mind, and therefore probably on the jury, were these: when the testator’s history came to be sifted, it turned out that he had recurring throughout his life a set of delusions which, from their nature, had a tendency to impair his disposing powers. He had suspicions of the motives which actuated the persons about him. Of all these incidents Sir Charles must have been totally ignorant. . . Sir Charles had no knowledge of this strange inner life. In determining whether or not he should propound this will, he had only before him evidence that the testator was a very eccentric man. Practically he had nothing more; that is the utmost to which it went. Under these circumstances, was he justified in propounding the will? I think he was.’
Sir John Hannen: ‘Accordingly, by the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued. In this respect the law of England differs from that of other countries. It is thought better to risk the chance of an abuse of the power arising from such liberty than to deprive men of the right to make such a selection as their knowledge of the characters, of the past history, and future prospects of their children or other relatives may demand . . ‘ and ‘It is unfortunately not a thing unknown that parents – and in justice to women I am bound to say it is more frequently the case with fathers than mothers, – that they take unduly harsh views of the characters of their children, sons especially. That is not unknown. But there is a limit beyond which one feels that it ceases to be a question of harsh unreasonable judgment of character, and that the repulsion which a parent exhibits towards one or more of his children must proceed from some mental defect in himself. . . . . there is a point at which such repulsion and aversion are themselves evidence of unsoundness of mind.’
Sir John Hannen
(1873) LR 3 P and D 64
Citing:
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 . .
Cited by:
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 . .
Distinguished – Twist v Tye 1902
The three plaintiff executors, who had unsuccessfully propounded a will, were also residuary legatees under the will, had themselves managed the deceased’s affairs before she made it, and had had ample opportunity of forming an opinion as to her . .
Cited – Kostic v Chaplin and others ChD 7-Dec-2007
The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself . .
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 . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 18 December 2021; Ref: scu.242127