The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting the execution of the will, but medical evidence was contradictory. The judge found against the will.
Held: The appeal failed. The decision was finely balanced, but was essentially one of fact. The judge had made no new law. ‘Mr Adam was, however, in the final stages of severely debilitating progressive multiple sclerosis, whose agreed effect was to have impaired his cognitive functions. The question was whether by the summer of 2001 he had crossed an imprecise divide. Those most closely associated with caring for him and those who prepared and attended the execution of his will firmly believed that he had not. Miss Hall observed the golden rule in every particular and beyond. Yet Mr Adam made a will which was in part irrational. Leaving the residuary estate to Mr Sharp and Mr Bryson was entirely understandable. Leaving nothing at all to his daughters was not. The question did not relate exclusively to his cognitive powers. ‘
The court sub-divided the test for capacity into four elements: ‘It is essential to the exercise of such a power that a testator,
(a) shall understand the nature of the act and its effects;
(b) shall understand the extent of the property of which he is disposing;
(c) shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object,
(d) that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’
The Honourable Mr Justice Jacob
[2006] EWCA Civ 449, [2006] WTLR 1059
Bailii
England and Wales
Citing:
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Appeal from – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others ChD 27-Jul-2005
The testator suffered advanced multiple sclerosis. Daughters excluded from benefit in the will challenged his capacity to have made the will.
Held: Though ‘He was able to understand the nature of the fact of making a will, he knew the identity . .
Cited – Kenward v Adams ChD 29-Nov-1975
The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed . .
Cited – In re Simpson Deceased; Schaniel and Another v Simpson and Others ChD 1977
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however . .
Cited – Den v Vancleve 1819
When asking as to the capacity of a testator, the court should ask: ‘was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?’ and ‘By the terms ‘a sound and disposing mind . .
Cited – Boughton v Knight 1873
The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and . .
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 – Charles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
Cited – Boyse v Rossborough HL 1857
In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .
Cited by:
Cited – Kostic v Chaplin and others ChD 15-Oct-2007
The deceased had for several years suffered a delusional disorder. The validity of his last two wills was challenged. In one had had left his entire estate to the Conservative Party.
Held: The wills were invalid. It was clear that when made, . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 18 December 2021; Ref: scu.241405
