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 at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge and approval.
Held: There was no prior authority supporting the case that delay in institution might warrant the striking out of a probate claim. The issues fell to be decided by reference to the facts alleged in the pleadings. Slade J said: ‘The authorities appear to show that in a case where a testator, even in a state approaching insensibility, has executed a testamentary instrument drawn up in accordance with previous instructions, he will be held to have known and approved of its contents if, at the time of execution, he was capable of understanding and did understand that he was engaged in executing the will for which he had given instructions, even though at the moment of execution he might not have remembered those previous instructions and would not, at that moment, have understood the provisions of the will, if read to him clause by clause: see Williams and Mortimer, Executors, Administrators and Probate, 15th ed. (1970), p. 148 and the cases there cited. However, if a litigant is successfully to avail himself of this principle he must, I think, satisfy the court at least that the testator at the time of execution was capable of understanding and did understand that he was executing the will for which he had given instructions.’ and ‘After an action of this nature has been started, he submitted, the court is under a duty to investigate the propriety or otherwise of the order under which the relevant grant was obtained, no matter how extreme the delay. The court, in his submission, is sitting as a court of conscience concerned with the sanctity of probate, so that it must allow the validity of the grant of probate to be investigated at whatever date the challenge may be made, unless there are other grounds, apart from questions of delay, upon which it is obvious that the action must, in due course, fail.’
Judges:
Slade J
Citations:
[1982] 1 WLR 310
Jurisdiction:
England and Wales
Citing:
Applied – 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 by:
Cited – Wahab v Khan and Others; In re Abdus Sattar Sheikh deceased ChD 12-Apr-2011
The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 25 July 2022; Ref: scu.434919
