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