References: [2010] EWCA Civ 840, [2010] WLR (D) 196, (2010) 13 ITELR 405, [2011] 2 WLR 1086
Links: Bailii, WLRD
Coram: Moore-Bick LJ
Ratio: 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 instructions, it was upheld, applying Parker v Felgate. The appellant, challenging the will, said that that case was not good law.
Held: The appeal failed. The case of Felgate was based on established case law principles. It was necessary to distinguish between knowledge and approval and capacity: ‘testamentary capacity is a prerequisite to knowledge and approval because if the former is not shown there is no need to look for the latter. ‘
Statutes: Wills Act 1837
Jurisdiction: England and Wales
This case cites:
- Cited – Parker and Another v Felgate and Tilly ((1883) 8 PD 171)
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 . . - Appeal From – Perrins v Holland and Another ChD (Bailii, [2009] EWHC 1945 (Ch), [2009] WTLR 1387)
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 – Smith v Tebbitt ((1867) 1 P&D 398)
. . - Cited – Banks v Goodfellow QBD ((1870) LR 5 QB 549)
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 . . - Costs at First Instance – Perrins v Holland and Others ChD (Bailii, [2009] EWHC 2558 (Ch))
. . - Cited – Burdett v Thompson ((1878) 3 P&D 72)
. . - Cited – Boughton v Knight ((1873) LR 3 P & D 64)
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 – Seeman v Seeman (Commonlii, [1752] EngR 169, (1752) 1 Lee 181, (1752) 161 ER 67)
The testator had made his will in August 1735 leaving several pecuniary legacies. At some time some of those legacies had been obliterated. He died in 1751. One of the disappointed legatees challenged the will on the grounds that the obliteration . . - Cited – Moore, Formerly Hacket v Hacket (Commonlii, [1755] EngR 56, (1755) 2 Lee 147, (1755) 161 ER 294 (A))
The will was executed in conformity to instructions, established, though the testator had become incapable before the will was read over to him. William Hacket, deceased, made his will, dated 27th May, 1754 : his wife executrix and residuary legatee . . - Cited – Moore, Formerly Hacket v Hacket (Commonlii, [1755] EngR 56, (1755) 2 Lee 147, (1755) 161 ER 294 (A))
The will was executed in conformity to instructions, established, though the testator had become incapable before the will was read over to him. William Hacket, deceased, made his will, dated 27th May, 1754 : his wife executrix and residuary legatee . . - Cited – Sandford v Vaughan And Others (Commonlii, [1809] EngR 24, (1809) 1 Phill 39, (1809) 161 ER 907)
The court heard a plea regarding a number of testamentary papers left by Sir John Chichester. In relation to the fifth paper Sir John Nicholl observed: ‘Where an unfinished draft is propounded, it must be shown that the deceased was prevented, by . . - Cited – Charles Harwood v Maria Baker PC ((1840) 3 Moores PCC 282, Commonlii, [1840] EngR 1087, (1840) 3 Moo PC 282, (1840) 13 ER 117)
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 . . - Persuasive – Pereira v Pereira; Perera v Perera PC (Bailii, [1901] UKPC 16, [1901] AC 354, [1901] 70 LJPC 46, [1901] 84 LT 371)
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 . . - Cited – Battan Singh v Amirchand PC ([1948] AC 161)
(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 – Clancy v Clancy ChD (Times 09-Sep-03, Gazette 02-Oct-03, [2003] WTLR 1097)
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 – Billinghurst v Vickers, Formerly Leonard (Commonlii, [1810] EngR 5, (1810) 1 Phill 199, (1810) 161 ER 960, Commonlii, [1810] EngR 555, (1810) 1 Phill 187, (1810) 161 ER 956)
(Ecclesiastical Court) The opinion of the Court has already been given on the principal part of this case. It has been stated that the first part of this will, which was alleged to be in the handwriting of the deceased, is sufficiently proved ; but . . - Cited – In the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall v Batten and Another ([1952] Times LR 925)
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 – Re Flynn ChD ([1982] 1 WLR 310)
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 . . - Cited – Paske v Ollat (Commonlii, [1815] EngR 1050, (1815) 2 Phill 323, (1815) 161 ER 1158 (C))
(Ecclesiastical Court) The will was written by the testator’s attorney and contained a bequest in his favour.
Held: The will was upheld. Sir John Nicholl said: ‘the law of England requires, in all instances of the sort, that the proof should . . - Cited – Ingram v Wyatt (Commonlii, [1827] EngR 94, (1827) 1 Hag Ecc 94, (1827) 162 ER 519)
The will appointed the testator’s agent and attorney as both executor and almost universal legatee.
Held: These circumstances called for more than evidence of due execution. Sir John Nicholl said of the testamentary capacity: ‘In order to . . - Cited – Barry v Butlin PC ((1838) 2 Moores PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . . - Cited – Hoff and others v Atherton CA (Bailii, [2004] EWCA Civ 1554, [2005] WTLR 99)
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 . . - Appeal from – Perrins v Holland and Others ChD (Bailii, [2009] EWHC 2558 (Ch))
. . - Cited – Buckenham v Dickinson ChD ([1997] CLY 4733, [2000] WTLR 1083)
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 . .
(This list may be incomplete)
This case is cited by:
- See Also – Perrins v Holland and Others CA (Bailii, [2010] EWCA Civ 1398)
The court heard an appeal as to costs. . . - Cited – Gill v Woodall and Others CA (Bailii, [2010] EWCA Civ 1430, [2010] NPC 126, [2011] 3 WLR 85, [2011] WTLR 251, [2011] Ch 380)
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . . - Cited – Gill v Woodall and Others CA (Bailii, [2010] EWCA Civ 1430, [2010] NPC 126, [2011] 3 WLR 85, [2011] WTLR 251, [2011] Ch 380)
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . . - Cited – Ram and Another v Chauhan and Another Misc (Bailii, [2017] EW Misc 12 (CC))
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .
(This list may be incomplete)
Last Update: 26 July 2017
Ref: 421003
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