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 not read over or summarised to him before he executed it and Devlin J was not satisfied that the deceased knew and approved its contents at the time he executed it. However, he found that he knew and approved of the contents of the ‘Last wish’ and had executed the will in the understanding that it gave effect to its provisions.
The court considered the necessary mental capacity of a testator when executing a will: ‘If it were necessary for the defendants who set up the will to satisfy me that at the time when he actually executed the document Mr Wallace knew and approved its contents, I should not be so satisfied. And, indeed, the defendants do not put their case as high as that. The evidence clearly falls short of showing that Mr Wallace read the will, which was not read over to him, or satisfied himself that it carried out his wishes in the matter. The defendants therefore rely upon the principle, which according to the authorities has been well established, that if a testator gives instructions for a will to be drawn, and if the Court is satisfied that he knew and approved the contents of those instructions, it is not necessary that the Court should also be satisfied that he knew and approved the contents of the will, provided that the circumstances were such as would enable the court to say that he knew the will had been drawn according to his instructions.’
Devlin J
[1952] Times LR 925
England and Wales
Citing:
Cited – 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 – 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 . .
Cited by:
Approved – Clancy v Clancy ChD 31-Jul-2003
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 . .
Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.196962
