Simon v Byford and Others: CA 13 Mar 2014

The court was asked whether the testatrix (a) had testamentary capacity and (b) knew and approved the contents of her will when she executed it at or immediately after her 88th birthday party. The judge had answered both those questions in the affirmative.
Lewison LJ said: ‘when we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that counts: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices whereas knowledge and approval requires no more than an ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacked testamentary capacity at the date that the will is executed. The reason for this requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland (2010) EWCA civ 840. Normally proof of instructions and reading over the will will suffice: ibid at (25). The correct approach for the trial judge is clearly set out in Gill V Woodhall (2010) EWCA civ 1430. It is a holistic exercise based on the evaluation of all the evidence both factual and expert. The judge’s starting point in our case was one of initial suspicion given that the disputed will was prepared and executed without a solicitor and without Mrs Simon having been medically examined’

Sullivan, McFarlane, Lewison LJJ
[2014] EWCA Civ 280
England and Wales
Cited by:
CitedRam 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

Updated: 01 December 2021; Ref: scu.522398