Category: Wills and Probate

Royal National Institute for Deaf People and Others v Turner: ChD 18 Nov 2015

Challenge to grant of probate for home made will. Claim that not executed properly – contention that it was not signed by Mrs Whelen in the presence of 2 witnesses (s 9(1)(c)) and that the two witnesses who attested the will (Mr Hallam and Mrs Tomalin) did so at the request of and in the presence of Mrs Turner in the belief that they were witnessing Mrs Turner executing her own will. Both Mr Hallam and Mrs Tomalin assert that Mrs Whelen was not present when they attested her will (s 9(1)(d)).

Behrens HHJ
[2015] EWHC 3301 (Ch)
Bailii
Wills Act 1837 9
England and Wales

Wills and Probate

Updated: 06 January 2022; Ref: scu.554805

Crawford, Commonly An Infant, By John Crawford, etc v Viscount of Garnock, and His Creditors; and others: HL 28 Apr 1735

Tailzie – Title to pursue – An heir under an entail, which was not properly recorded, having possessed without inserting in his infeftments the fetters of the entail, and contracted debts; the next heir (who had made up his titles in the same manner,) brought an action to have it declared that these debts were chargeable on the estate, and that he might lawfully sell a part of it in order to pay them. It was found that he had no power to sell,-the right of the creditors to bring proper actions for affecting the estates being reserved.

[1735] UKHL 1 – Paton – 167, (1735) 1 Paton 167
Bailii
Scotland

Wills and Probate

Updated: 06 January 2022; Ref: scu.554579

Guthrie v Morel and Others: ChD 5 Nov 2015

The will had failed clearly to identify a property in Spain the subject of a bequest.
Held: Summary judgment was given. ‘It seems to me to be clear that the deceased intended by his Will to deal with his entire estate and that he intended the words ‘My property 87 Loma Del Rey’ to be understood as a reference to his villa at 81 Loma Del Rey and not to some other property which he did not own. In these circumstances the application succeeds. ‘

John Baldwin QC HHJ
[2015] EWHC 3172 (Ch)
Bailii
England and Wales
Citing:
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – The Royal Brompton Hospital National Health Service Trust v Hammond and Others (No 5) CA 11-Apr-2001
When looking at an application to strike out a claim, the normal ‘balance of probabilities’ standard of proof did not apply. It was the court’s task to assess whether, even if supplemented by evidence at trial, the claimant’s claim was bound to fail . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Doncaster Pharmaceuticals Group Ltd and Others v The Bolton Pharmaceutical Company 100 Ltd CA 26-May-2006
Appeals were made against interlocutory injunctions for alleged trade mark infringement.
Held: The court should hesitate about making a final decision for summary judgment without a trial, even where there is no obvious conflict of fact at the . .
Cited – ICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .
Cited – Easyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 January 2022; Ref: scu.554427

Elizabeth Moodie, Spinster, A Pauper v John Stewart of Burgh: HL 6 Feb 1730

Provision to heirs and children – The heir under a marriage contract may, during his father’s lifetime, renounce for himself and his successors all claims under the contract.
Idiotry – In a reduction of a deed ex capite furoris, after the death of the granter, a general allegation of idiotry not relevant.

[1730] UKHL 1 – Paton – 20, (1730) 1 Paton 20
Bailii
Scotland

Wills and Probate, Trusts

Updated: 05 January 2022; Ref: scu.554261

William Nisbet of Dirleton v Janet, Jane, and Willielmina Nisbetd Erski: HL 7 Mar 1727

Legitim – Husband and Wife – Provisions to Heirs and Children – Bonds
Portions to children in a contract of marriage if not so expressed, do not exclude their right of legitim.
Upon a wife’s renouncing her thirds, by the contract of marriage, the division of the personal estate is bipartite, one half legitim, the other half dead’s part.
Provisions to children, in this case, do not come off the whole head of the executry as a debt; but they are first to impute the legitim in payment of these portions, and take the rest as a debt from the deads’ part if necessary.
Bonds fall under legitim

[1727] UKHL Robertson – 594, (1727) Robertson 594
Bailii
Scotland

Wills and Probate

Updated: 05 January 2022; Ref: scu.554238

Henein v Laffa: CA 16 Jun 2015

The claimant, the widower of the deceased renewed his application for leave to appeal against the rejection of his challenge to his late wife’s will, and whether a notice of severance had been vaildly served.

Sir James Munbyy P FD
[2015] EWCA Civ 700
Bailii
England and Wales

Wills and Probate, Land

Updated: 05 January 2022; Ref: scu.553846

Alexander Murray, of Broughton, Esq; v George Bullerwell, Gentleman: HL 12 Feb 1723

Process – In a competition between two persons, claiming to be heirs to an estate, the inquest refused to retour either of them. One of the parties in an action of reduction and declarator, calls the other as a defender; a third claimant now craves to be admitted, as a defender in this action, stating himself to be in the same degree of propinquity with the other defender, which the pursuer acknowledged. The Court having refused to admit this third party as a defender in that action, the judgment is reversed, ex parte.

[1723] UKHL Robertson – 436, (1723) Robertson 436
Bailii

Scotland, Wills and Probate

Updated: 05 January 2022; Ref: scu.553796

Falconer v Dame Elizabeth Falconer, Ramsay, Archer, Minister of The Gospel At Laurencekirk, or Conveth, and Mortimer: HL 4 Jun 1721

Presumption. –
Two mortifications for educating children at a parish school, are found in the grantor’s repositories after his death; the one bore date four years after the other, but was in same terms with the first, with this alteration only, that a larger sum was mortified, and a greater number of boys to be educated: the Court having found that both subsisted as distinct deeds; the judgment is reversed.
The Court having also refused a proof by the instrumentary witnesses, of the donor’s intention; their judgment is reversed, and liberty given to examine the instrumentary witnesses.

[1721] UKHL Robertson – 377
Bailii
Scotland

Wills and Probate

Updated: 05 January 2022; Ref: scu.553673

John Campbell, of Calder, Esq v Ruth Pollock, Alias Campbell: HL 7 Jun 1720

Personal and transmissible – A sum appointed by a father to be paid to a son, his heirs, executors, or assignees, at a day certain, was transmissible by the son, though he died before that day.
Pactum Illicitum – An estate is fetded by a father upon his son and his heirs, reserving a life-rent to a certain amount, and by the son’s marriage contract the estate is declared to be of a certain annual value: two years after the marriage the son by a deed declares that the estate was not worth so much per annum, but that this was done to please the wife’s friends, and he grants bond to pay or allow the father to charge a sum upon the estate for provisions to his younger brothers and fitters, which should be in full of legitim: this was not contra fidem tabularum nuptialium.
Implied Discharge – After granting this bond, the fiar made a new disposition of the estate to the son, in same terms with the marriage-contract; but this was not a discharge of the bond, allowing the father to charge the estate with childrens’ provision
Fiar absolute limited – In a son’s marriage-contract it is covenanted, on the part of his father that lanas and hereditaments of a certain annual value were to be fettled and assured so as that the same should come to and be vested in the eldest son of the marriage, and other lands and hereditaments to remain to the son’s use, reserving the father’s life-rent of part: the son was fiar, and by his bond bound the heirs of the marriage.

[1720] UKHL Robertson – 324, (1720) Robertson 324
Bailii
Scotland

Trusts, Wills and Probate

Updated: 05 January 2022; Ref: scu.553650

Gill v Woodall and Others: ChD 5 Oct 2009

The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she had been provided for.
Held: The challenge to the will succeeded. The testatrix had suffered agorophobia, and on being taken to the solicitors to execute a will would have her will overborn by irrational fears. Given also the additional circumstances of her domineering husband and the oddity of the provisions of the will when compared to her views when expressed, the claimant had made out that her will had not been freely given.

Allen QC J
[2009] EWHC 834 (Ch)
Bailii
England and Wales
Citing:
Cited – Guardhouse v Blackburn 1866
. .
Cited – Atter v Atkinson 1869
. .
Cited – Harter v Harter 1873
. .
Cited – Tyrrell v Painton CA 1894
The rule throwing upon the party propounding a will the burden of showing that it expresses the true will of the deceased is not confined to cases where the will is prepared by a person taking a benefit under it. After reference to Barry v Butlin . .
Cited – In the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – Richards v Allan ChD 2001
The court found that the will at issue was prepared under suspicious circumstances which included the fact that the idea of the will was conceived and implemented in a period after a significant hospitalisation where the physical and mental . .
Cited – Fulton v Andrew HL 1875
The will was professionally drawn but through agency of the executors, specific legatees and residuary legatees. The Court of Probate directed the case to be tried at the assizes where the judge asked the opinion of the jury on a number of questions . .
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 – 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 – Hall v Hall 1868
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of . .
Cited – Parfitt v Lawless 1872
When a court considers the preparation and execution of a will, there can be no presumption of undue influence. . .
Cited – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
Cited – Sidney Bolsom Investment Trust Ltd v E Karmios and Co (London) Ltd CA 1956
The tenants had intended to ask for a new tenancy of 14 years, but by mistake, the notice of request implied a new lease of seven years. The request nevertheless set out the duration of the proposed new tenancy. The tenants tried to bring in parol . .
Cited – Crabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
Cited – Greasley v Cooke 1980
For a proprietary estoppel to arise the plaintiff must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment. However, once it has been established that promises were made, and that there has been conduct by the . .
Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
Cited – JT Developments v Quinn and Another CA 1990
The plaintiff told the defendant it was willing to grant a lease on the same terms as those contained in a new tenancy that the plaintiff had recently granted to the tenant of a nearby shop, also owned by the plaintiff. The defendant carried out . .
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Cited – Uglow v Uglow and others CA 27-Jul-2004
The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel.
Held: The judge was right to have found that the promise was bound up with the claimant being . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Edwards v Edwards and others ChD 3-May-2007
A son of the deceased alleged that his brother had used his undue influence over their mother to persuade her to change her will to exclude him from it.
Held: Lewison J set out the correct approach to an allegation of undue influence, saying: . .
Cited – Thorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Cited – Edwards v Edwards and others ChD 3-May-2007
Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .

Cited by:
Appeal from – 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 – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 05 January 2022; Ref: scu.381738

Craig v Lamoureux: HL 1920

The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, 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 . . It is also important in this connection to bear in mind that which was laid down by Sir James Hannen in Wingrove v Wingrove (1885) 11 PD 81 and quoted with approval by Lord MacNaughten in delivering the judgment of this Board in Baudains v Richardson (1906) AC 169, and it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the will was obtained.’

Viscount Haldane
[1920] AC 349
England and Wales
Citing:
Cited – Baudains v Richardson PC 1906
The Board considered the quality of the influence necessary to establish undue influence: ‘Influence may be degrading and pernicious and yet not undue influence in the eyes of the law’ . .
Cited – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .

Cited by:
Cited – Killick 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 . .
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. . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Wills and Probate

Updated: 05 January 2022; Ref: scu.213658

Ark and Others v Kaur and Others: ChD 17 Sep 2010

The proponents sought to have the will (executed in India) admitted to probate. The daughters denied that he had executed it. The court heard detailed explanations of the procedures said to have been undertaken for the making and execution of the will in the Punjab.
Held: The will had been properly executed under both UK and Indian law, and had been executed with full knowledge. As to the allegation of undue influence, there was no sufficient and reliable evidence either direct or indirect to establish coercion. Nor could the will be construed so as only to refer to the properties in India. The will was to be admitted.

Cooke J
[2010] EWHC 2314 (Ch)
Bailii
England and Wales
Citing:
Cited – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
Cited – In re Good, deceased; Carapeto v Good and Others ChD 19-Apr-2002
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
Cited – Hall v Hall 1868
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of . .
Cited – Tyrell v Painton CA 1894
The proposed will had been made by the testatrix when ill. She had signed a first will two days earlier. Her doctor said she was exhausted and was drowsy and had complained to her. The treating doctor that she had been disturbed by the introduction . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 January 2022; Ref: scu.424102

In re Good, deceased; Carapeto v Good and Others: ChD 19 Apr 2002

The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or those interested in the residue had been the cause of the litigation or if the circumstances led reasonably to an investigation. In this case a challenge to the will failed, but the challenge had not been without merit, and it remained appropriate to make an order that one half of the claimant’s costs be payable from the estate.
A testator, when there is no suggestion of insanity, is presumed to have remained sane: ‘The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding the will. In the ordinary course, the burden will be discharged by proving the due execution of the will and that the testator had testamentary capacity. Where, however, the will was prepared in circumstances exciting suspicion something more may be required from those propounding the will by way of proof of knowledge and approval of its contents. A relevant standard of proof is, however, simply by reference to that balance of probability.’
As to proof of execution of the will, Rimer J said: ‘The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding the will. In the ordinary course, the burden will be discharged by proving the due execution of the will and that the testator had testamentary capacity. Where, however, the will was prepared in circumstances exciting suspicion, something more may be required from those propounding the will by way of proof of knowledge and approval of its contents. The relevant standard of proof is, however, simply by reference to the balance of probability.’
On undue influence, Rimer J said: ‘the burden of proving that the May will was procured by undue influence on the part of the Carapetos lies squarely on the defendants. He disclaimed any suggestion that in circumstances such as those of the present case there is any scope for a presumption that undue influence was brought to bear on Miss Good, such that the burden is on the Carapetos to rebut it.
In this context, undue influence means coercion. The defendants have to show that, one way or another, the Carapetos so manipulated Miss Good that she felt she had no choice but to make the May will. ‘

Justice Rimer
Times 22-May-2002, Gazette 07-Jun-2002, (2002) WTLR 801, [2002] All ER 141, [2002] EWHC 640
Civil Procedure Rules 44.3
England and Wales
Citing:
Cited – Spiers v English 1907
The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if . .
Cited – Hall v Hall 1868
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of . .
Cited – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .

Cited by:
Appeal from – Carapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
Cited – Ark and Others v Kaur and Others ChD 17-Sep-2010
The proponents sought to have the will (executed in India) admitted to probate. The daughters denied that he had executed it. The court heard detailed explanations of the procedures said to have been undertaken for the making and execution of the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs, Civil Procedure Rules

Updated: 05 January 2022; Ref: scu.171261

Killick 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 favour. The court was asked to deal with the matter on affidavit evidence alone, the first defendant failing to appear to give evidence to defend the will.
Held: A judge in a contested probate case had an inquisitorial function seeking truth, and should be ready to see through attempts to manoeuvre the court. It was for a party who asserted undue influence to prove it. Where there was evidence of improper influence, the additional presence of some enfeeblement in the testator would make it easier to find that such influence was ‘undue’, but evidence of such infirmity does not itself establish undue influence. Adverse inferences should not normally be drawn, but the facts here allowed such an inference of undue influence. The fact that the defendant did not appear at court was not conclusive against him.

James Munby QC
Times 30-Apr-1999, Independent 10-May-1999, (2000) 1 WTLR 41
Citing:
Cited – 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 . .
Cited – Hall v Hall 1868
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of . .
Cited – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
Cited – Craig v Lamoureux HL 1920
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in . .
Cited – Freeman v Cox 1878
. .

Cited by:
Cited – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 05 January 2022; Ref: scu.82774

Baudains v Richardson: PC 1906

The Board considered the quality of the influence necessary to establish undue influence: ‘Influence may be degrading and pernicious and yet not undue influence in the eyes of the law’

Lord MacNaughten
[1906] AC 169
England and Wales
Citing:
Approved – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .

Cited by:
Cited – Craig v Lamoureux HL 1920
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in . .
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, . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Wills and Probate

Updated: 05 January 2022; Ref: scu.213659

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.
Held: There was no evidence of undue influence, and the testator was of sound mind and capacity and he had made a disposition precisely along the lines which he wished to make.

Gillen J
[2003] NIFam 2
Bailii
Citing:
Cited – Arthur v Bokenham 1708
Supervening insanity will not revoke a will made when the testator was of sound mind. . .
Cited – Re H (Mackenzie Friend: Pre-trial Determination) 2002
The presumption in favour of permitting a Mackenzie friend is a strong one. . .
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 – O’Connell v Shortland 1989
Supreme Court of South Australia – The mere eccentricity of a testator is not sufficient to avoid the will. . .
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 – 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 – 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 – In re Simpson Deceased; Schaniel and Another v Simpson and Others ChD 1977
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however . .
Cited – Kenward v Adams ChD 29-Nov-1975
The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed . .
Cited – 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 . .
Cited – Hall v Hall 1868
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of . .
Cited – Craig v Lamoureux HL 1920
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in . .
Cited – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Wills and Probate

Updated: 05 January 2022; Ref: scu.180254

Wharton v Bancroft and Others: ChD 8 Dec 2011

Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult daughters who challenged the will for lack of capacity and undue influence: ‘that Mr Wharton was terminally ill and on medication may say something about the opportunity to exercise undue influence: but it says nothing about whether that opportunity was taken’.
Held: The challenge failed and the court pronounced for the will. As to undue influence, the court had to be minded as to the burden and standard of proof, and ‘Is evidence of a departure from imprecisely expressed intentions evidence which is sufficiently cogent to persuade me that the explanation for the departure is that Mr Wharton’s volition was overborne by coercion, rather than that on his deathbed he saw things differently than he had in life? I answer that question in the negative. The imminence of death undoubtedly caused Mr Wharton to reassess matters. That is why he intended to get married. It was in the light of that intention that he made the 2008 Will. I do not regard it as suspicious that a ‘husband’ should leave to his ‘wife’ of 32 years the entirety of his estate, even if he is a rich man. The difference between the former indications and the actual terms of the 2008 Will are not in this case sufficiently cogent evidence to found the inference of coercion (particularly in the light of the consistent advice Mr Wharton had received as to the way of mitigating the now-imminent tax charge). I see no reason to treat Mr Wharton’s statements to Mr Bancroft (and the implication of his statement to Zena) about leaving his estate to Maureen as anything other than expressions of free will.’
The solicitor was not to be criticised for not following the ‘golden rule’ of securing the attendance of an independent medical expert to confirm the tetstaor’s capacity: ‘But testamentary capacity is not in issue in this case. I consider the criticism of Mr Bancroft for a failure to follow ‘the golden rule’ to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that ‘the golden rule’ has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.’

Norris J
[2011] EWHC 3250 (Ch)
Bailii
England and Wales
Citing:
Cited – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
Cited – Cowderoy v Cranfield ChD 24-Jun-2011
cowderoy_cranfieldChD2011
The claimant challenged a will alleging lack of capacity, non-approval and undue influence.
Held: Morgan J discussed the standard of proof applicable: ‘The requisite standard is proof on the balance of probabilities but as the allegation of . .
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 – 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 – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Cited – Killick 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 . .
Cited – Channon and Another v Perkins (A Firm) CA 1-Dec-2005
A will was challenged by the family. The witnesses had said that they did not remember witnessing the deceased sign the will, and would have done. The principle beneficiary appealed refusal of admission to probate of the will.
Held: Neuberger . .
Cited – Edwards v Edwards and others ChD 3-May-2007
Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .
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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence, Legal Professions

Updated: 05 January 2022; Ref: scu.449871

Wingrove v Wingrove: 19 Nov 1885

To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To be undue influence in the eyes of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced in to doing that which he or she does not desire to do that it is undue influence.
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quiteness’ sake, to do anything. This would equally be coercion, though not actual violence.
These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such condition, that if he could speak his wishes to the last, he would say ‘this is not my wish, but I must do it’.
There remains another general observation that I must make and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.’

Sir James Hannen
[1885] 11 PD 81, [1885] UKLawRpPro 46
Commonlii
England and Wales
Cited by:
Cited – Killick 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 . .
Approved – Baudains v Richardson PC 1906
The Board considered the quality of the influence necessary to establish undue influence: ‘Influence may be degrading and pernicious and yet not undue influence in the eyes of the law’ . .
Cited – Craig v Lamoureux HL 1920
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in . .
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 – In re Good, deceased; Carapeto v Good and Others ChD 19-Apr-2002
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
Cited – Ark and Others v Kaur and Others ChD 17-Sep-2010
The proponents sought to have the will (executed in India) admitted to probate. The daughters denied that he had executed it. The court heard detailed explanations of the procedures said to have been undertaken for the making and execution of the . .
Cited – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Wills and Probate

Updated: 05 January 2022; Ref: scu.188024

John Murray of Conheath v James Murray His Younger Brother, Trustee for Elizabeth Maxwell Their Mother: HL 28 Jul 1715

Fiar – The proprietor of an estate, burdened with apprisings, dying, leaves two lifters, whose husbands enter into a submission for themselves, and as taking burden upon them for their wives, with a person who had or appeared to have right to some of these apprisings; by the decreet arbitral, they are decreed to be conveyed to the husbands and their wives, the husbands paying the price; the wives were fiars of these apprisings, and not the husbands

[1715] UKHL Robertson – 144, (1715) Robertson 144
Bailii
Scotland

Land, Wills and Probate

Updated: 04 January 2022; Ref: scu.553486

David Gregory of Kinnairdy v James Anderson Grazier In Aberdeen: HL 24 Jun 1716

Donatio inter virumet Uxorem – During the subsistence of a marriage a wife and her sister, who have an equal right to a bond, convey the same to the husband. He afterwards makes his will, appointing his wife executrix and universal legatee, for behoof of the grandchildren. After the death of the husband, the grant formerly made by her to him was not revocable as a donatio inter virum et uxorem.
Prescription – The prescription of 40 years not to be counted, from the date of an assignment of a bond, but from the time of receiving the money thereon.
Onerous cause – An assignment of a bond, bearing to be for onerous cause, from the circumstances of parties as executrix and trustee, found not to prove the onerous cause of the assignment in a question near 50 years from the date thereof.
Trust – A discharge granted by an executrix to a manager for her under a will, who had a salary, or all his receipts and intromissions, in general terms, was not sufficient to discharge him from the intromission with a bond, which the deceased disponed to the widow, his executrix, for the good of his grand-children.

[1716] UKHL Robertson – 178, (1716) Robertson 178
Bailii

Family, Wills and Probate, Scotland

Updated: 04 January 2022; Ref: scu.553495

Andrew Porteous In Deboig v Thomas Fordyce, and Janet Scott His Wife: HL 26 Jun 1716

Cautioner – A person who had, without confirming, intromitted with his father’s effects, which were left to him by will for payment of debts, is, upon application of the creditors, ordained to intromit with the effects upon inventorying the same, and finding caution to make the same forthcoming: he accordingly finds caution, and upon a subsequent application for summary intromission with some of the effects, the Court refused the same, and ordained him to confirm the testament and prosecute in common form; but he neither inventoried the effects, nor confirmed the testament: the cautioner was liable for the whole goods intromitted with.
Proof – A debt against this cautioner substantiated by the oath of the intromitter in another cause.

[1716] UKHL Robertson – 183, (1716) Robertson 183
Bailii
Scotland

Wills and Probate

Updated: 04 January 2022; Ref: scu.553494

Douglas As Assignees of Douglas Douglas v Montgomerie, Paterson, and Others, Creditors: HL 18 Jun 1714

Fiar – An estate being settled by an heiress to her husband and herself in conjunct fee and life-rent and the heirs to be procreated between them in fee, whom failing to the husband, his nearest lawful heirs and assignees; the husband was fiar.
Donatio non praesumitur – The fee taken up by a daughter as heir to her father, where a disposition had been made to a Ion (dceased), upon which infeftment had followed, but never cloathed with possession nor recorded.
Adjudication – A charge being given to a son to enter heir to his uncle and mother, and adjudication being led thereon; but the father being afterwards found to be fiar, the first adjudication is reduced.
The said son refusing to subject himself to his father’s debts, has no title to quarrel the adjudication led of his father’s fee.

[1714] UKHL Robertson – 99, (1714) Robertson 99
Bailii
Scotland

Wills and Probate

Updated: 04 January 2022; Ref: scu.553471

Matouskova: ECJ 6 Oct 2015

Judgment – Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – Article 1(1)(b) – Substantive scope – Inheritance settlement agreement between the surviving spouse and minor children represented by a guardian ad litem – Classification – Requirement for approval of such an agreement by the court – Measure relating to parental responsibility or measure relating to succession

C-404/14, [2015] EUECJ C-404/14
Bailii
European

Children, Family, Wills and Probate

Updated: 04 January 2022; Ref: scu.553099

Birks v Birks: 21 Apr 1865

Probate was applied for for two testamentary papers. Mistake. Admissibility of Parol Evidence.-Testamentary Papers not inconsistent with each other. The First not revoked by the Last.—A testator, having erased a clause in his Will after the execution, asked a friend to make a fresh copy of the Will, omitting the erased clause. The copy was made; but the person who made it by mistake omitted several other clauses. The copy was duly executed, and the omissions were not discovered until after the testator’s death, both Wills having remained in his custody up to that time. The two Wills were not inconsistent with each other, and the latter contained no express clause of revocation. Probate was granted of both documents upon parol evidence of the circumstances under which they were drawn up and executed, as together containing the deceased’s last Will and Testament.
Sir J P Wilde said ‘It is undoubted law that parol evidence may be given to show the circumstances under which a testamentary paper was executed’

Sir J P Wilde
[1865] EngR 362 (B), (1865) 4 Sw and Tr 23
Commonlii
Cited by:
Cited – O’Learly v Douglass 25-Jan-1878
The testator had executed two wills, identical in all respects save only for the dates and the attesting witnesses.
Held: Warren J said: ‘On these facts it would seem immaterial whether one or both papers should be admitted to probate.’ . .
Cited – Lamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 January 2022; Ref: scu.281274

Perrin v Morgan: PC 25 Jan 1943

The Board was asked ‘whether, when the word ‘money’ appears in an English will as the description of that of which the testator is disposing, the word, in the absence of any context or other circumstances proper to be considered as varying its meaning, must be interpreted according to an alleged fixed ‘rule of construction’ which has been regarded by our courts as established and binding for many generations past’

Lord Atkin , Lord Thankerton , Lord Russell Of Killowen, And Lord Romer
[1943] UKHL 3, [1943] AC 399, [1943] 1 All ER 187
Bailii

Wills and Probate

Updated: 03 January 2022; Ref: scu.551477

Ilott v Mitson and Others: CA 27 Jul 2015

The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal succeeded. The District Judge had made two ‘fundamental’ errors of principle, and these allowed the appeal court to re-evaluate the claim for itself: ‘he had held that the award should, in the light of the long estrangement and Mrs Ilott’s independent life and lack of expectation of benefit, be limited, but he had not identified what the award would have been without these factors and thus the reduction attributable to them; and ii) he had made his award of 50,000 pounds without knowing what the effect of it would be upon the benefits which Mrs Ilott and her family presently received.’
Setting aside the order of the District Judge, the Court made its own assessment of the proper award.
Arden LJ said: ‘In my judgment, what the court has to do is to balance the claims on the estate fairly. There is no doubt that, if the claimant for whom reasonable financial provision needs to be made is elderly or disabled and has extra living costs, consideration would have to be given to meeting those. In my judgment, the same applies to the case where a party has extra financial needs because she relies on state benefits, which must be preserved. Ms Reed submits that the provision of housing would not do this. I disagree. The provision of housing would enable her both to receive a capitalised sum and to keep her tax credits. If those benefits are not preserved then the result is that achieved by DJ Million’s order in this case: there is little or no financial provision for maintenance at all.
The claim of the appellant has to be balanced against that of the Charities but since they do not rely on any competing need they are not prejudiced by what may be a higher award than the court would otherwise need to make.
In my judgment, the right course is to make an award of the sum of 143,000 pounds, the cost of acquiring the Property, plus the reasonable expenses of acquiring it. That would remove the need to pay rent though some of that money may be required for meeting the expenses that she will have as owner. As Ms Stevens-Hoare submits, having the Property will enable her to raise capital (by equity release) when she needs further income in the future.
In addition, I would add to the award a further sum to provide for a very small additional income to supplement her state benefits without the necessity of an equity release. If my Lords agree, I would provide that she has an option, exercisable by notice in writing to the [executors] within two months of the date of this order (or within such longer period as the appellant and [they] may agree) to receive a capital sum not exceeding of andpound;20,000 out of the estate for this purpose. According to the current Duxbury tables in At a Glance for 2015/6, the sum 20,000 pounds would if invested give her 331 pounds net income per year for the rest of her life. This is not a large amount because of the factors which weigh against her claim, particularly the fact that she is an adult child living independently, Mrs Jackson’s testamentary wishes and to a small extent the appellant’s estrangement from Mrs Jackson.
The option may be exercised in part more than once provided that the total sum of 20,000 pounds is not thereby exceeded. I have expressed the provision of a capital sum as an option so that, if the award of a capital sum would result in the loss of benefits, she can if she wishes take a lesser sum, or (as she may prefer to do if she is advised that her benefits will not be prejudiced) she may take the lesser sum and spend it, and then exercise the option for an amount or amounts not exceeding the balance.’

Arden, Rymer LJJ, Sir Colin Rimer
[2015] EWCA Civ 797, [2016] 1 All ER 932, [2015] WTLR 1399, [2015] 2 FCR 547, [2015] Fam Law 1196, [2015] 2 FLR 1409
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
See Also – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
Appeal From – Ilott v Mitson and Others FD 3-Mar-2014
The claimant sought to appeal against a decision on quantum made under the 1975 Act. The court had awarded her andpound;50k in capital by way of maintenance from her mother’s estate, where the mother had left the estate to animal charities. She had . .
Cited – Re Christie (deceased) 1979
In an application under the 1975 Act, the judge treated maintenance as being equivalent to providing for the well-being or benefit of the applicant.
Mr Vivian Price QC said: ‘ ‘although reasonable financial provision means provision for the . .
Cited – Re Dennis deceased ChD 1981
The courts have declined to define the word ‘maintenance’ closely. ‘Maintenance’ connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of . .
Cited – Snapes v Aram; Wade etc, In re Hancocks (Deceased) CA 1-May-1998
The adult daughter of the deceased claimed under the 1975 Act. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a . .

Cited by:
Appeal from – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 03 January 2022; Ref: scu.550609

Seals and Another v Williams: ChD 15 May 2015

The parties lawyers had proposed a Early Neutral Evaluation of the case anticipating mediation. The parties disputed inheritance challenges to the will.
Held: ‘The advantage of such a process over mediation itself is that a judge will evaluate the respective parties’ cases in a direct way and may well provide an authoritative (albeit provisional) view of the legal issues at the heart of the case and an experienced evaluation of the strength of the evidence available to deploy in addressing those legal issues. The process is particularly useful where the parties have very differing views of the prospect of success and perhaps an inadequate understanding of the risks of litigation itself.’ and ‘The proposed directions have been carefully crafted so as to afford the Settlement Judge the opportunity to make non-binding recommendations as to the outcome and to state short reasons for that recommendation without in any sense attempting a provisional judgment. Indeed, the Settlement Judge will not be further involved in the proceedings at all. The directions also provide that, in the light of the recommendations, the parties may agree a Consent Order.’

Norris J
[2015] EWHC 1829 (Ch)
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales

Wills and Probate, Litigation Practice

Updated: 01 January 2022; Ref: scu.549481

Soulsbury v Soulsbury: CA 10 Oct 2007

The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from the estate. It was argued that the agreement was unenforceable.
Held: The executors’ appeal failed. The agreement was binding on the husband’s estate. Mrs Soulsbury had done everything she should have done to perform her part of the bargain, and it remained enforceable.

Ward LJ, Longmore LJ, Smith LJ
[2007] EWCA Civ 938 – 2, [2007] EWCA Civ 969, Times 14-Nov-2007, [2008] Fam Law 13, [2007] 3 FCR 811, [2007] WTLR 1841, [2008] 1 FLR 90, [2008] 2 WLR 834, [2008] Fam 1
Bailii
England and Wales
Citing:
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Hyman v Hyman 1929
The husband had left the wife for another woman. Adultery by the husband was not a ground for divorce absent aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums . .
Cited – Bennett v Bennett CA 1952
The wife sued for arrears of maintenance payments payable under a deed in consideration for which the wife covenanted not to proceed with the prayers in the petition for maintenance, to consent to their being dismissed, and not to present any . .
Cited – Goodinson v Goodinson 1954
W covenanted that for so long as the weekly payments of maintenance for herself and the child were punctually made, she would not commence or prosecute any matrimonial proceedings against the husband. The husband fell in arrears and she claimed the . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – Sutton v Sutton 1984
The husband and his wife agreed that in consideration, inter alia, of the wife consenting to the husband divorcing her on the ground of two years’ separation and consent, he would transfer the matrimonial home to her, and she would take over . .
Cited – Smallman v Smallman CA 1972
An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the . .
Cited – Gould v Gould CA 1970
H told W he would pay her pounds 15 a week as long as he had it. She issued a writ claiming payment of arrears of maintenance due.
Held: The agreement was unenforceable, since it was not sufficiently certain.
Lord Denning MR (dissenting) . .
Cited – Merritt v Merritt CA 1970
H and W owned their house jointly. When H left for another woman, he signed an agreement to pay Mrs Merritt a monthly sum, and eventually to transfer the house to her if Mrs M kept up the monthly mortgage payments. When the mortgage was paid off Mr . .
Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Minton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Cited – Errington v Errington and Woods CA 19-Dec-1951
There was a contract by a father to allow his son to buy the father’s house on payment of the instalments of the father’s Building Society loan.
Held: Denning LJ reviewed the cases and said: ‘The result of all these cases is that, although a . .
Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – Pagnan SpA v Feed Products Ltd ChD 1987
An agreement can be enforceable as an agreement on main terms only, with the detailed terms to be agreed later. Bingham J said: ‘The Court’s task is to review what the parties said and did and from that material to infer whether the parties’ . .
Cited – Amey v Amey FD 1992
H and W ran a public house held in H’s name. W left for another man. A clean break settlement was agreed under which H was to pay W andpound;120,000 in full and final settlement of all her claims and a draft note of order was to be placed before the . .
Cited – Peacock v Peacock FD 1991
The court considered its ability to vary a consent order, made in 1982 on the divorce, which provided for the sale of the matrimonial home ten years later in 1992 and for the equal division of the proceeds of sale. Periodical payments were to be . .

Cited by:
Cited – Warwick (Formerly Yarwood) v Trustee In Bankruptcy of Clive Graham Yarwood ChD 13-Sep-2010
The trustee sought to have set aside as an unlawful preference, the payment of 75% of the proceeds of sale of the former matrimonial home to the bankrupt’s wife, saying that the payment had been made after the presentation of the petition. The . .

Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 01 January 2022; Ref: scu.259769

Sharp v Hutchins: ChD 1 May 2015

‘The issue for the Court is whether to pronounce in solemn form in favour of a will dated 5 January 2013 (‘the 2013 Will’) as contended by the Claimant on the Claim or in favour of a will dated 4 December 2011 (‘the 2011 Will’) as contended by the Defendant on the Counterclaim. The Defendant challenges the 2013 Will for want of knowledge and approval on the part of Mr Butcher.’

Ms Lesley Anderson QC DHCJ
[2015] EWHC 1240 (Ch)
Bailii
England and Wales

Wills and Probate

Updated: 30 December 2021; Ref: scu.546292

Sibbald v Greig: SCS 18 Feb 1612

In what Cases a Bastard’s Effects fall to the Lord of Regality – The Archbishop of St Andrews found to have no right to the escheats of bastards deceasing within the bounds of his regality, by his general infeftment, unless he would offer to prove, that he was infeft per expressum in his regality, cum eschaetis bastardorum; notwithstanding that he alleged, That he and his predecessors had been in use many times, to decern upon the escheats of bastards deceasing within his regality and give declarators thereupon; which was found unlawful.

[1612] Mor 1354
Bailii

Scotland, Wills and Probate

Updated: 28 December 2021; Ref: scu.544322

Buchanan v Campbell: SCS 1 Jun 1601

Lands or goods of a bastard, or person deceasing without heirs, pertain not to the Lord of Regality, unless specially expressed in his infeftment
Mr Johne Dalzell, and Susanna Buchanan his spous, havand be gift of our Soverane Lord, the escheit of all guddis and dettis, whilk pertenit to umquhile—-Campbell, dochter to the said Susanna and umquhile Colene Campbell, bastard son to Archibald Erle of Argyll, procreat betwixt the said Susanna and the said Colene, as ultimas haeres to the said dochter deceiss, and without ony lawful airs, pursuit the Laird of Caddell, as aire be provision to the said umquhile Colene, for the soume of ane thousand punds, whilk the said Colene, be contract, had obligit him, his heirs and successors in his lands, to pay to the air’s femell to be gottin betwixt him and the said Susanna, the soume of ane thousand pundis.-It wes alledgit, That his donatour could have no action upone his Majestie’s gift, becaus the lands to the whilk Caddell succeidit, lay in the Regaltie of Argyll, and the persons dwelt thairin; and sua the gift appertenit to the Erle of Argyll be verteu of his regalitie.-It wes ansrit, That the gift of thingis falland be deceis of personis havand na lawful aires of thair awn blude as ultimus haeres, could not pertene to the Lord of Regalitie be the general privilege of regalitie, unles he wer infeft in that privilege per expressum, the sam being sua great ane richt, and sua deulie belanging to the King’s crowne, that it could not be comprehendit under ane general disposition of regalitie.–Which reply the Lords sand relevant, and in respect thairof, repellit the exception.–Next it it wes exceptit, That this soume could not pertene to the donatour, becaus nather the King nor his donatour could be in ane better cais, as ultimus haeres, nor the defunct; and the defunct could never have had richt to the soume controverted, unles sche had been aire to hir father, becaus it wes providit to the aires-femell, and sche not being aire femell, had na richt; and consequentlie the King, as ultimus haeres, could have na richt.-It wes ansrit, That the provision wes consavit in favour of the bairns femell; and albeit sche wes not servit aire, yet the successour to the lands wes ordanit, be contract, to pay that soume for her provision, and the King had succeidit in her richt.–The Lords repellit the alledgeance, and sand that the donatour had richt.

[1601] Mor 1353
Bailii

Scotland, Wills and Probate

Updated: 28 December 2021; Ref: scu.544303

Shovelar and Others v Lane and Others: CA 12 Jul 2011

The married couple, now deceased, had made wills in identical form, but the surviving husband made a new will. His children in law succeeded in their claim that the original wills had been mutual. The defendants appealed against the costs order made.

Ward, Arden, Moore-Bick LJJ
[2011] EWCA Civ 802, [2012] 1 WLR 637, [2011] 5 Costs LR 832, 14 ITELR 147, [2012] 1 FCR 318, [2011] WTLR 1411, [2011] 4 All ER 669
Bailii
England and Wales

Wills and Probate, Costs

Updated: 28 December 2021; Ref: scu.441590

Adam Cockburn of Ormiston, One of The Senators of The Court of Justice, and Dame Ann His Wife v John Hamilton of Bangour, A Minor, By His Curators: HL 28 Mar 1712

Lis finita – After extracting a decreet, with a reservation therein of several point, the objection of Lis finita and that these points were not contained in the original summons, is sustained by the Court, but reversed upon appeal.
Funeral expences. – In a question between the heir and the assignee of the executrix of a Lord Justice Clerk, 250 l., being modified, as sufficient for funeral expences, the judgment is reversed.
Prescription. – Furnishing to the funeral did not form such a continuation of accounts as to bar the triennial prescription of accounts incurred before the death of the deceased.
Subject Confirmation. – The Court having refused to allow to the assignee of an executrix in a question with an heir served cum beneficio, the expences of an action before them relative to the right of confirmation between the executrix and the father of the heir served cum beneficio, the judgment is reversed.

[1712] UKHL Robertson – 32, (1712) Robertson 32
Bailii
Scotland

Wills and Probate

Updated: 28 December 2021; Ref: scu.553456

Bishop v Plumley: CA 1991

Where the support provided by the deaceased more or less matched in value the service provided by the applicant to the deceased, it will be assumed that the services were given for ‘full valuable consideration’ but a court must be careful not to leave a caring and devoted applicant in a worse position than an uncaring one.

Butler-Sloss LJ
[1991] 1 All ER 236, [1991] 1 WLR 582
Inheritance (Provision for Family and dependants) Act 1975 1930
England and Wales

Wills and Probate

Updated: 27 December 2021; Ref: scu.220642

Thomas Duffield, And Emily Francis His Wife, Plaintiffs In The Court Of Chancery v Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duff: PC 1829

[1829] EngR 245, (1829) 3 Bligh NS PC 260, (1829) 4 ER 1334
Commonlii
England and Wales
Citing:
See Also – Thomas Duffield, Esq And Emily Frances His Wife v Amelia Maria Elwes, Widow, Francis Const And George Law, Abraham Henry Chambers, The Rev William Hicks, Clerk and Others 1825
. .
See Also – Duffield v Elwes 12-Jun-1823
Land subject to mortgage – possible gift donatio mortis causa? . .
See Also – Duffield v Elwes 1-Jun-1826
. .
Cited – Thomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others PC 1827
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 27 December 2021; Ref: scu.322113

Ward v Turner: 21 Jul 1752

[1752] EngR 113, (1752) Dick 170, (1752) 21 ER 234 (C)
Commonlii
England and Wales
Citing:
See Also – Ward v Turner 20-Jul-1752
In the doctrine of donation mortis causa, the necessity for a delivery in every case and the acts sufficient for that purpose are developments of English law. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 24 December 2021; Ref: scu.378331

Randall v Randall: ChD 7 Oct 2014

The parties requested a decision on a preliminary issue, namely: ‘whether, on the footing that the facts and matters set out in the Claimant’s Particulars of Claim are true, the Claimant has an interest in the estate of Sylvia Joyce Corrall deceased sufficient to give him legal standing to bring a contentious probate claim therein.’

DM Maraes
[2014] EWHC 3134 (Ch)
Bailii
England and Wales

Wills and Probate

Updated: 22 December 2021; Ref: scu.537368

Wilkes v Allington: 1931

(1931) 2 Ch 104
England and Wales
Citing:
Followed – Thomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others PC 1827
. .

Cited by:
Cited – Sen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 December 2021; Ref: scu.669946

Lord Sidney Beauclerk And Topham Beauclerk His Son v Doctor Mead, Executor of Richard Topham, Esq, James Mead And James Pearce, Executors of Lord Chief Justice Reeve: 15 Apr 1741

A will is ambulatory, till a testator’s death, nor till then can money directed to be laid out in land, be considered as land.-A testator says, as to the rest and residue of his lands, etc, his will is, that the annual profits shall be equally divided between Mr. Reeve and Lord Sidney, and said nothing about the personal estate. By all the rules of grammar, as well as law, the words rest and residue must relate to something that went before, and There the testator calls it by the name of real estate, can never be said to affect his personal.

[1741] EngR 466, (1741) 2 Atk 167, (1741) 26 ER 505
Commonlii
England and Wales

Wills and Probate

Updated: 20 December 2021; Ref: scu.384971

Kerr v Mangan and Others: SCS 25 Jul 2014

The deceased’s former partner of many years claimed after his death for money from his estate. The court agreed, but decided that a house in in Ireland belong to the deceased had not been part of the estate, being out of the jurisdiction, and that therefore the ‘net intestate estate’ could not support a payment.

Lady Smith, Lord Drummond Young, Lord McGhie
[2014] ScotCS CSIH – 69
Bailii

Scotland, Wills and Probate

Updated: 18 December 2021; Ref: scu.535589

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 testator may strengthen certain presumptions which arise against the will in a case where the will is contrary to the previously expressed intentions of the testator as to his testamentary dispositions.
‘in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property.’ and
‘Now if their Lordships had found from the other evidence that Mr Baker had, while in a state of health, compared and weighed the claims of his relations, and had formed the deliberate purpose of rejecting them all in favour of his wife, but had omitted to carry that purpose into effect before the attack of illness under which he dies; and that during that illness he had acted upon that previous intention, and executed a Will in question, – less evidence of the capacity to weigh those claims during his illness might have been sufficient to show that the Will propounded really did contain the expression of the mind and will of the deceased.’
Erskine J said: ‘Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And, therefore, the question which their Lordships propose to decide in this case is, not whether Mr Baker knew, when he executed this will, that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disposition might cast down some light upon the question as to his capacity.’
and ‘that in all cases the party propounding the Will is bound to prove, to the satisfaction of the Court, that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially cast upon him when the evidence in the case shows that the mind of the testator was generally, about the time of its execution, incompetent to the exertion required for such a purpose.’

Erskine J
(1840) 3 Moores PCC 282, [1840] EngR 1087, (1840) 3 Moo PC 282, (1840) 13 ER 117
Commonlii
England and Wales
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 . .
Approved – 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 – 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 – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 18 December 2021; Ref: scu.181900

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 testator’s testamentary capacity.
Held: The will failed. When a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and make a contemporaneous record of his examination and findings. Though the terms of the will were rational, and the result of its dispositions might be fair, nevertheless, the burden on the objectors of establishing lack of capacity had been met: ‘the element of suspicion arising from the circumstances, although by no means overpowering, is sufficient to call for affirmative proof of knowledge and approval, beyond that constituted by the due execution of a rational will.’

Briggs J
[2010] EWHC 408 (Ch), [2010] 1 WLR 2020, [2010] WTLR 623
Bailii
England and Wales
Citing:
Cited – Kenward v Adams ChD 29-Nov-1975
The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed . .
Cited – In re Simpson Deceased; Schaniel and Another v Simpson and Others ChD 1977
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however . .
Cited – Re Moss, Larke v Nugus CA 1979
Executors To Give Information Avoiding Expense
(Decided in approximately 1979) The signature of the testatrix, an elderly woman, was distinctly wobbly, the will contained a gift, as it was put by the trial judge, ‘in favour of persons on whom the testatrix is dependent’, and the executor, who . .
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 – 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 – 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 – Cattermole v Prisk 2006
Banks v Goodfellow was the appropriate starting and finishing point for consideration of mental capacity to make a will. . .
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 – 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 – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
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:
Cited – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .
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.402542

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.’

Lord Kenyon
[1776] 3 Curt App
England and Wales
Cited by:
Approved – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.219624

Burdett v Thompson: 1878

(1878) 3 P and D 72
England and Wales
Cited by:
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 – 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.421021

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 testamentary capacity.
PROCEDURE – Role of judge – Lengthy questioning of expert witness by judge – Whether intervention excessive – Whether intervention gave rise to a denial of natural justice.
EVIDENCE – Expert evidence that testatrix suffering from delirium – No opposing expert evidence – Hospital records suggesting conduct of testatrix inconsistent with symptoms of delirium as described by expert – Whether open to judge to reject uncontradicted expert evidence.
‘The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.’

[2009] NSWCA 197
Austlii
Australia
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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.374720

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 she understood it, and that it represented her wishes. He then witnessed the will. The testatrix later came to suffer dementia. The family sought to say that she lacked capacity.
Held: The test for mental capacity is not monolithic, but is tailored to the task in hand.
The Court will accept that the testator was able to understand what he was doing and its effect at the time when he signed the document but needs to be satisfied (by something other than inference from the fact of capacity and due execution of the will) that he did in fact know and approve the contents, i.e. understand what he was doing and its effect.
Proper procedures had been undertaken to ensure that the will was properly executed and witnessed, and there was evidence that the testatrix had capacity. There was no suggestion of any undue influence. The appeal failed.
Chadwick LJ said: ‘A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity – the ability to understand what is being done and its effect – is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not.’
and ‘Further, it may well be that where there is evidence of a failing mind – and, a fortiori , where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will – the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say, that he did understand what he was doing and its effect – it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator’s capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents – in the wider sense to which I have referred.’

Peter Gibson LJ, Chadwick LJ
[2004] EWCA Civ 1554, [2005] WTLR 99
Bailii
England and Wales
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 – Re K (Enduring Powers of Attorney), In re F ChD 1988
The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself . .
Cited – 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.’ . .
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 . .
Cited – In Re Beaney deceased ChD 1978
A gift made inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the . .
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 – 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 – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – Marsh v Tyrrell 1828
Revocation of Earlier Will needs Knowleedge
The testatrix was found to have made a new Will, at a time when her faculties were much impaired, under the undue influence of her husband, who under that Will took her estate absolutely subject only to some small legacies, whereas under the . .
Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Cited – Kenward v Adams ChD 29-Nov-1975
The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Appeal from – Francis Hoff and others v Mary Atherton ChD 2004
A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first. . .
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 by:
Cited – Westendorp and Another v Warwick ChD 27-Apr-2006
. .
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 – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.219525

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 especially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed’
and ‘my concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity.’

Mummery, Patten LJJ, Sir Scott Baker
[2013] EWCA Civ 74
Bailii
England and Wales
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 – 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.471012

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 the execution of the will, but medical evidence was contradictory. The judge found against the will.
Held: The appeal failed. The decision was finely balanced, but was essentially one of fact. The judge had made no new law. ‘Mr Adam was, however, in the final stages of severely debilitating progressive multiple sclerosis, whose agreed effect was to have impaired his cognitive functions. The question was whether by the summer of 2001 he had crossed an imprecise divide. Those most closely associated with caring for him and those who prepared and attended the execution of his will firmly believed that he had not. Miss Hall observed the golden rule in every particular and beyond. Yet Mr Adam made a will which was in part irrational. Leaving the residuary estate to Mr Sharp and Mr Bryson was entirely understandable. Leaving nothing at all to his daughters was not. The question did not relate exclusively to his cognitive powers. ‘
The court sub-divided the test for capacity into four elements: ‘It is essential to the exercise of such a power that a testator,
(a) shall understand the nature of the act and its effects;
(b) shall understand the extent of the property of which he is disposing;
(c) shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object,
(d) 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.’

The Honourable Mr Justice Jacob
[2006] EWCA Civ 449, [2006] WTLR 1059
Bailii
England and Wales
Citing:
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Appeal from – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others ChD 27-Jul-2005
The testator suffered advanced multiple sclerosis. Daughters excluded from benefit in the will challenged his capacity to have made the will.
Held: Though ‘He was able to understand the nature of the fact of making a will, he knew the identity . .
Cited – Kenward v Adams ChD 29-Nov-1975
The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed . .
Cited – In re Simpson Deceased; Schaniel and Another v Simpson and Others ChD 1977
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however . .
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 – 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 – 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 – 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 – 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 . .

Cited by:
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, . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.241405

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 solicitor had twice seen her alone to check his instructions and had confirmed her capacity. The judge had correctly applied the law, and this was in essence an appeal on the facts.

Lord Justice Hirst Lord Justice Ward Lord Justice Chadwick
[1998] EWCA Civ 342
England and Wales
Citing:
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 . .
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 – Wintle v Nye HL 1959
Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 18 December 2021; Ref: scu.143820

In re Smith: 1932

A gift ‘unto my country England’ was construed as a charitable gift for the benefit of the inhabitants of England and, by analogy with the cases on gifts to a parish, town or city, as impressed with a trust that it be applied for charitable purposes only.
The court will favour making a testator’s testamentary dispositions effective if possible within the limitations and in accordance with the principles of law
Otherwise: Re Smith, Public Trustee v Smith

[1932] 1 Ch 153
England and Wales
Cited by:
Cited – Sir Graham Stanley Latimer and others – Trustees for the Crown Forestry Rental Trust v The Commissioner of Inland Revenue PC 25-Feb-2004
PC (New Zealand) The Crown created a charitable trust for certain Maori people. Upon exhaustion of the purpose, the fund was to revert to the Crown. The trustees appealed a finding of liability to income tax.
Cited – Gibbs v Harding and others ChD 12-Jan-2007
The testatrix left a will anticipating making another. The court was asked whether a clause leaving her estate to ‘be taken over by the Diocese of Westminster to hold in trust for the Black community of Hackney’ was valid.
Held: The gift was . .

Lists of cited by and citing cases may be incomplete.

Charity, Wills and Probate

Updated: 18 December 2021; Ref: scu.194633

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 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

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 possible to lose testamentary capacity and yet retain capacity to know and approve the contents of a will. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. The testator had capacity when he gave instructions for the will, but had lost capacity at the date when he executed the will. The principle in Parker v Fellgate would lead to pronouncement in favour of the will, and the instructions had been given direct to the solicitor. There had however been a long time between the instuctions and the execution, and the court had to be satisfied that the instructions continued to represent the testator’s wishes. The requirements of using open questions in Buckenham, applied on the taking of instructions, not at the stage of execution.

Lewison J
[2009] EWHC 1945 (Ch), [2009] WTLR 1387
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
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 – 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 – 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 – 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 – 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 – 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 – 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 – 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:
Main judgment – Perrins v Holland and Others ChD 21-Oct-2009
. .
Appeal From – 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 . .
See Also – Perrins v Holland and Others CA 8-Dec-2010
The court heard an appeal as to costs. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.368646

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 shifted the burden of proof. However in this case the common law applied, the death occuring in 2003.

Stephen Smith QC
[2008] EWHC 1100 (Ch), [2008] WTLR 1261
Bailii
Mental Capacity Act 2005 1 2 3
England and Wales
Citing:
Cited – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
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 – Cattermole v Prisk 2006
Banks v Goodfellow was the appropriate starting and finishing point for consideration of mental capacity to make a will. . .
Cited – In re Simpson Deceased; Schaniel and Another v Simpson and Others ChD 1977
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however . .
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:
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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.268731

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 and memory’ it has not been understood that a testator must posses these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must posses them in as great a degree as he may have formally done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory.’

(1819) 2 Southard 589
England and Wales
Cited by:
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 – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.219628

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 demonstrate the capacity of the testator, and the defendant had not done so. The will failed.

Norris QC J
[2007] EWHC 2599 (Ch)
Bailii
England and Wales
Citing:
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 . .
Cited – Broughton v Knight 1873
Sir J Hannen said that a testator ‘may disinherit his children, leave his property to strangers to gratify his spite, or to charities to gratify his pride’. . .
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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.259922

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 hospital with a terminal illness. She telephoned the solicitor from hospital to confirm her approval of the will. He attended on her and she executed it. The medical evidence indicated that at the she executed it it was highly unlikely that the deceased was able to make decisions about her will, but there was evidence that it was likely that she would have been able to recognise the will as the draft she had previously seen. A sister challenged the will saying that she had lacked testamentary capacity at the time of its execution and that she did not know and approve its contents.
Held: The simple will reflected the instructions given. The testatrix was gravely ill and sedated when she executed the will, but there was sufficient testamentary capacity, where it could be shown that she believed that the solicitor had properly embodied her instructions in the will, and that at the time that she signed it she accepted the document as giving effect to those instructions. She had previously seen and agreed the draft will. The will was pronounced valid despite the fact that at the time the will was executed, there were doubts as to her full capacity.
Rimer J said: ‘because that would require actual knowledge on the testator’s part which the principle presumes he does not have, and which in cases such as Parker he would ordinarily be incapable of having. The Parker case shows that all that is required is a belief that the solicitor has properly carried out the instructions by preparing a will which gives due effect to them, and I doubt if Devlin J was intending to say anything different.’

Rimer J
Times 09-Sep-2003, Gazette 02-Oct-2003, [2003] WTLR 1097
England and Wales
Citing:
Cited – 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 . .
Applied – 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 – 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 – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Approved – 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 – In re Simpson Deceased; Schaniel and Another v Simpson and Others ChD 1977
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however . .
Cited – Thomas v Jones 6-Mar-1928
. .

Cited by:
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 – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.186106

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 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
. .

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