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 property to be disposed of had not been explained to the mother. The donor could not understand the relevant transaction and its effects without explanation. ‘Mother should have been in a condition to fully understand; (1), that she was disposing of her only asset of value and depriving herself of title to it; (2), that she was thereby pre-empting the provisions of her Will and, (3), that she was preferring one child and cutting out the others from all benefit.’ and
‘The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject matter and value of a gift are trivial in relation to the donor’s other assets a low degree of understanding will suffice. But, at the other extreme, if its effect is to dispose of the donor’s only asset of value and thus, for practical purposes, to pre-empt the devolution of his estate under his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all of the potential donees and the extent of the property to be disposed of.’
Judges:
Martin Nourse QC
Citations:
[1978] 1 WLR 770
Jurisdiction:
England and Wales
Cited by:
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 – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 13 May 2022; Ref: scu.219625
