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 possible to lose testamentary capacity and yet retain capacity to know and approve the contents of a will. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. The testator had capacity when he gave instructions for the will, but had lost capacity at the date when he executed the will. The principle in Parker v Fellgate would lead to pronouncement in favour of the will, and the instructions had been given direct to the solicitor. There had however been a long time between the instuctions and the execution, and the court had to be satisfied that the instructions continued to represent the testator’s wishes. The requirements of using open questions in Buckenham, applied on the taking of instructions, not at the stage of execution.
Lewison J
[2009] EWHC 1945 (Ch), [2009] WTLR 1387
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
Cited – Banks 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 – 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 – 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 – Zorbas v Sidiropoulous (No 2) 10-Jul-2009
Austlii (Supreme Court of New South Wales – Court of Appeal) SUCCESSION – Testamentary capacity – Testatrix gravely ill in hospital – While in hospital will made changing earlier will – Whether testatrix had . .
Cited – 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 . .
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 – 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 – Buckenham v Dickinson ChD 1992
The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples’ homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything . .
Cited by:
Main judgment – Perrins v Holland and Others ChD 21-Oct-2009
. .
Appeal From – 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 . .
See Also – Perrins v Holland and Others CA 8-Dec-2010
The court heard an appeal as to costs. . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 18 December 2021; Ref: scu.368646
