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 to execute the will. The doctor said ‘This is your will. Do you wish this lady to sign it?’
Held: Sir James Hannen, President directed the jury: ‘The law applicable in this case is this. If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property: I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.’ Now, I have only put into language that which flashes across the mind without being expressed in words. Do you believe that she was so far capable of understanding what was going on? Did she at the time know and recollect all that she had done with Mr Parker? That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think she was in a condition, if each clause of this will had been put to her, and she had been asked, ‘Do you wish to leave So-and-so so much,’ or do you wish to this (as the case might be), she would have been able to answer intelligently ‘Yes’ to each question? That would be another condition of mind. It would not be so strong as trhe first, viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from beginning to end, and think it all over again, but is able to say to himself, ‘I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;’ it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient. It is for you to say whether, having regard to the circumstances under which this will was prepared and executed, you accept the view of those who were present at the time, and who have given their evidence, who say that in their judgment she was conscious.’ and ‘If Mr Ponsford [the solicitor] only inserted these clauses because he believed the testatrix would approve of them that would not be sufficient. To make the clauses good there must be either instructions previously given or the will as drawn must be afterwards acknowledged or approved. If you believe that there were such instructions, then the will only expresses her intention and carries out her instructions, and the clauses cannot be rejected.’
Held: What is required at the date of execution is that the testator understands that he is executing a will for which he has previously given instructions. The court pronounced in favour of the will.
Sir James Hannen, President
(1883) 8 PD 171, [1883] UKLawRpPro 41
Commonlii
England and Wales
Cited by:
Applied – 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 . .
Applied – Thomas v Jones 6-Mar-1928
. .
Cited – In the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall v Batten and Another 1952
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 . .
Cited – Carr and others v Beaven and others ChD 29-Oct-2008
The parties contested the validity of a will on the basis of incapacity.
Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the . .
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 . .
Approved – 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 . .
Approved – Battan Singh v Amirchand PC 1948
(Supreme Court of Fiji) The will was declared invalid because the testator had lacked testamentary capacity, although the judge had rejected the allegation that the will was invalid for want of knowledge and approval.
Held: Lord Normand . .
Applied – Re Flynn ChD 1982
The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge . .
Applied – Re Flynn Deceased ChD 1982
An application was made to dismiss a challenge to a codicil on the basis that the claim disclosed no cause of action. The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack . .
Cited – Ram 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
Leading Case
Updated: 09 November 2021; Ref: scu.186107