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 over to the testator, raises a very strong presumption that it represents the testator’s intentions at the relevant time.
There is no legal fetter to the general principle of testamentary freedom by which a person may leave his or her assets as he or she sees fit, whether such disposition be unexpected, inexplicable, unfair and even improper.
The grant of probate to the will had been revoked. The Society which was the residuary beneficiary of the will now appealed. The testatrix had been said to have been under the excessive influence of a domineering husband, and the gift had been contrary to her expressed views of the Society.
Lord Nueberger MR said: ‘Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs. ‘
and, of the proposition in In Re Fuld ‘when all is dark, it is dangerous for a court to claim that it can see the light.’, that ‘that observation applies with almost equal force when all is murky and uncertain.’
Judges:
Neuberger MR, Lloyd, Jackson LJJ
Citations:
[2010] EWCA Civ 1430, [2010] NPC 126, [2011] 3 WLR 85, [2011] WTLR 251, [2011] Ch 380
Links:
Jurisdiction:
England and Wales
Citing:
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 . .
Appeal from – 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 – 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 – 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 – Gregson v Taylor ChD 1917
Hill J said: ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence.’ . .
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 – 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 – 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 – 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 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 – 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, Undue Influence
Updated: 28 August 2022; Ref: scu.427175