Boyse v Rossborough: HL 1857

In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be an inference which can justifiably be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean. As to the presence of capacity to make a will: ‘On the first head the difficulty to be grappled with arises from the circumstances that the question is almost always one of degree. There is no difficulty with the case of a raving mad man or drivelling idiot in saying that he is a person incapable of disposing of property; but between such an extreme case and that of a man of perfectly sound and vigorous understanding there is every shade of intellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon but at what precise moment twilight becomes darkness is hard to determine.’

Judges:

Lord Cranworth

Citations:

[1857] EngR 299, (1857) 5 HLC 1, (1857) 10 ER 1192, [1857] 6 HLC 2

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoBoyse v Rossborough 5-Dec-1853
A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .
See AlsoBoyse v Rossborough 11-Feb-1854
A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .
See AlsoBoyse v Rossborough 7-Nov-1854
A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .

Cited by:

CitedKillick v Pountney and Another; Re Killick Deceased ChD 31-Mar-1999
Mr Killick’s will was challenged on the basis that it had been executed under undue influence, and that he had suffered dementia. The deceased’s nephew alleged that the beneficiaries had used their position to influence him to make the will in their . .
CitedThompson 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, . .
CitedPotter 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. . .
CitedRobin 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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Wills and Probate

Updated: 29 April 2022; Ref: scu.188022