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 including whether the deceased knew and approved of the residuary clause giving the residue to the propounders. The jury answered that question in the negative.
Held: It was open to the jury so to decide, having regard to the circumstances, which included instructions to the draftsman of the will which left open to question whether the executors were to be given the residue as trustees for certain children. Once doubt is cast on the involvement of a witness to the execution of a will, it is for the person proposing the will to satisfy ‘the onus of shewing the righteousness of the transaction’. Lord Hatherley said that: ‘When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it, . . those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator’.
By ‘reading’ or ‘reading over’ there must be more than a mere literal, physical act of reading. The testator must be conscious of the terms of the will. The court is not required to make some moral judgment nor is it given some licence to refuse probate to a document of which it disapproves.
Lord Hatherley said that: ‘When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it, . . those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator’.
Judges:
Lord Hatherly
Citations:
(1875) LR 7 HL 448
Cited by:
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 – 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 – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – 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 – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 29 April 2022; Ref: scu.182181
