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
England and Wales
CitedBanks 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:
CitedRam 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