How does Capacity, Intention and Revocation Affect Wills?

Capacity

1. Age – s.4 of Wills act – no will made by any person below the age of majority (18) is valid.

Issue: whether there should be a maximum age. One possible argument is to require persons of a certain age to acquire a doctor’s certificate. However, if done so, another issue is whether a will made without such certificate is valid?

2. Mental competence

- s.3 of Wills Act – every person of sound mind

- Banks v Goodfellow (Cockburn CJ) – testator must have a sound and disposing mind and memory.

i) Nature of business

Testator must be aware that he is engaged in a testamentary act, i.e. expressing his wishes regarding the disposition of property that takes effect upon death.

ii) Recollection of the property

Testator must have a general awareness of the property he wishes to dispose of and not every item.

Waters v Waters – testator doesn’t need to know every atom of his property, as long as he knows generally the state of his property and what it consists of. How much he ought to know depends on how much he has.

iii) Objects of his bounty

Testator must be aware of the existence of potential beneficiaries.

Harwood v Baker – testator executed a will few days prior to his death in which he left all of his property to the wife and excluded some relatives. Will was invalid. Testator was too ill to give sufficient consideration to the potential claims of his relatives. Question was whether the testator was capable of recollecting who were his potential beneficiaries and intelligently excluded them.

iv) Manner of distribution

Testator must be able to recollect the manner in which the property is to be distributed between the objects of his bounty.

Boughton v Knight – testator must have an understanding to comprehend his relationship with the objects of his bounty and their claim upon him.

- Two types of lack of mental capacity: (i) persons born with limited mental capacity, (ii) mental impairment

1.Wood v Smith

Testator was 82, made a will 2 days before death. Court held that there was insufficient evidence that the testator was able to comprehend the extent of his property or the nature of the claims of those he was excluding.

  

2. Brown v Pourau

Testatrix was occasionally subject to trances in which she talked to spirits and fairies because she believed that a Maori curse was placed on her. Will was still valid.

3. In the Estate of Park

Testator was 78 and had suffered 2 strokes. He was previously a successful businessman but became forgetful and confused. He married a cashier he hardly knew. They were married and the testator executed a new will. The will was invalid on grounds of lack of mental capacity.

Capriciousness

- Even if a will is eccentric, it can still be valid if it’s Banks v Goodfellow competent.

1. Boughton v Knight

The law doesn’t prevent a man from making a will that is moved by capricious, frivolous, mean or bad motives

2. Bird v Luckie

A man is not bound to make a will that deserves approbation from the prudent, wise or the good. Some wills may seem capricious but if the testator is brought back to life, he would be able to explain why the will was made that way.

3. William Shakespeare left his wife his ‘second best bed’.

4. Henry, the Earl of Stafford, described his wife as the worst of women and guilty of all crimes. He left her five and forty brass halfpence which will buy a pullet for her supper.

Delusions

- It is an irrational belief which cannot be eradicated by a rational argument. Only delusions that influence the testator in making his will may render the will invalid.

1. Dew v Clark

Testator gave his only child a small gift out of his large estate. He treated her with great cruelty in her youth and described her as a fiend, a monster, Satan’s special property and a very devil. However, evidence showed that she was of exemplary character. Will was invalid.

2. Boughton v Knight

Testator left bulk of his estate to strangers. Will was invalid due to the testator’s insane dislike for the son.

3. Waring v Waring

Testatrix suffered various delusions including one where the PM used to visit her house, disguised as a fish peddler, to have an improper connection with her.

4. Smee v Smee

Testator believed he was the son of King George the IV and that his father prevented him from benefiting a trust fund which was diverted to favour his brothers. The will totally excluded his brothers. Court held that the will was invalid.

5. Re Nightingale

Testator was dying from cancer. He cut out his adopted son who was the main beneficiary under his first will, from his second will. Court held that the testator probably thought that the son was trying to murder him because the son had gently pushed him back onto the bed when he tried getting up.

6. Banks v Goodfellow

Testator left most of the estate to his niece. She had cared for him and stayed with him. He was once in a lunatic asylum. He was still suffering from 2 delusions, i.e. he was being pursued by devils and evil spirits and that a dead man pursued and molested him. He was however capable of managing his affairs. Will was valid.

When must the testator have mental capacity?

- Must be mentally competent when the will is executed. Lack of competency before or after execution of will is not fatal.

1. In the Estate of Walker

Testator was declared a lunatic. She suffered delusions which made her violent. She however took interest in general topics, was a clever woman with excellent memory and etc. Her will made in the presence of 3 doctors certifying she was mentally competent was valid.

2. Chambers and Yatman v Queen’s Proctor

A barrister was alleged to have strange and eccentric habits. He suffered from delusions including that he was an object of scorn to his friends and the world. He made a will, committed suicide and the will was still valid.

3. Parker v Felgate

If a mentally competent testator gives instructions to a solicitor to make his will, then loses mental competence before the will is executed, the will may still be valid.

4. Battan Singh v Amirchand

Instructions given to lay intermediaries to be passed to solicitors were held to be invalid.

Burden of proof

1. Barry v Butlin

The burden of proof in proving mental capacity lies on the party propounding the will. If the will is rational on its face, the presumption is that the testator had mental capacity. The burden shifts to the party opposing the will to rebut such presumption by evidence to the contrary. If successfully rebutted, the burden shifts back to the propounder.

2. Symes v Green

Testator made a will which his nephew challenged. The will was rational and properly executed, so the testator was presumed to be mentally competent. Evidence however showed that he was suffering from insanity when he made the will. The burden shifted back to the propounder who failed to prove that the testator had mental competence.

- If the will is irrational on the face, the presumption is that the testator lacked mental capacity.

1. Austen v Graham

The testator left a small gift to his brother and the rest to the Turkish Ambassador to benefit the poor in Constantinople and to erect a cenotaph with the testator’s description. Court found it absurd since the testator was an English native and a Christian. However, evidence showed that the testator had in his early life adopted the mode of living of a Mohamedan. Will was valid.

- There is a presumption that if the testator has been mentally competent prior to the will, he is also mentally competent during the execution.

- If the testator is known to be insane before execution, presumption is that the testator was still insane at the execution.

1. Cartwright v Cartwright

Testator’s will was rational on its face. Presumption was that she was mentally competent but evidence showed that she was insane 6 months before the will’s execution. The will was still upheld because of evidence that the testatrix understood the state of her affairs and to give what was proper in the way she has done.

Effect of mental incompetence

The will fails if the testator lacks mental incompetence. However, if the incapacity only affected 1 part of the will, the rest may still be valid.

1. Re Bohrmann

Testator was a psychopath. He however had exceptional acumen in managing his private affairs. He made substantial gifts to English Charities. However, he added a codicil to revoke gifts made to English Charities in favour of American Charities because he suffered a delusion that he was being persecuted by the London County Council. The judge upheld the will with the omission of the revoking clause.

- It is always recommended to arrange for the testator to be examined by a medical practitioner.

1. Kenward v Adams

If the testator is old and infirm, the making of his will should be witnessed and approved by a medical practitioner.

- There is no presumption that a person who is addicted to alcohol lacks testamentary capacity unless evidence can show that the testator was severely drunk when he made the will.

1. In the Estate of Heinke

Testator revoked a substantial gift to his housekeeper of 16 years, during a bout of heavy drinking. Codicil was held invalid on the ground that the deceased had not been of sound mind, memory and understanding.

2. Chana v Chana

A will was upheld even though the testator was a heavy drinker. A will becomes invalid if it can be shown that the drunkenness prevented the testator from knowing the nature of his act.

Intention

- A testator must have animus testandi when he executes a will. If no intention, the will is invalid. The testator must know and approve of the contents of the will.

1. d’Eye v Avery

Testator suffered a stroke and was unable to communicate. He made a will with the help of a former dancing partner. Although he had capacity to make a will, he lacked knowledge and approval. Will was invalid.

- If a will is properly executed and if the testator had mental capacity, the presumption is that there is animus testandi.

1. Lister v Smith

If a paper appears to be the record of a testamentary act, but in reality it was the offspring of joke, not seriously intended as a disposition of property, it should not be a valid will.

2. Nichols v Nichols

Testator’s will was written ‘I leave all my property between my children…that they will worship God, and not black coats.’ Black coats referred to lawyers whom the deceased was one and whom he loved to ridicule. The document was executed where the deceased wanted to show how short a will could be. The deceased never again referred to the will and regarded himself as not having made a will. Court pronounced intestacy.

Wishes intended to take effect on death

- testator must make an expression of wishes, normally to dispose of his property upon his death.

1. Hodson v Barnes

The words ’17-1925. Mag, Everything I possess. – J.B.’ was held to not constitute a will.

2. In the Estate of Knibbs

A barman on a liner said to the head barman during a chat about his sister Iris that ‘If anything ever happens to me, Iris will get anything I have got’. Court held that those words were mere gossip spoken without animus testandi.

3. Re Stable

Deceased was a young soldier. His solicitor mistakenly told him he could not make a will. He told his fiancée that he would give everything to her if anything happened to him. Court held that the will was valid as the statement was made with animus testandi.

Conditional Wills

- Testator may make wills which are conditional on the occurrence of some specified event. If condition is not fulfilled, there is no animus testandi.

                                             

 1. In the Goods of Hugo,

A married couple executed a joint will before a journey which had a condition that it is effective if they died together by the same accident. They survived the journey. The joint will was invalid.

2. In the Goods of Spratt

Testator was a soldier serving in New Zealand. He wrote to his sister saying that if the war continued and if he dies in an accident, his money goes to his sister. The testator died years after the war ended. Will was valid because it was not conditional. A will is unconditional if the testator says that he is led to making the will due to the uncertainty of life.

Knowledge and Approval

- The testator must know and approve of the contents of the will.

1. Cleare v Cleare

The testator must know and approve of the contents of the will. Lack of knowledge and approval renders a will invalid.

- The burden of proof is on the propounder of the will. If the will is duly executed and made by a testator with the mental capacity, the presumption would be that there was knowledge and approval. The burden then shifts to the person challenging the will to rebut the presumption. If evidence exists to rebut the presumption, the burden goes back to the propounder.

Suspicious circumstances

1. Tyrrell v Painton

If there are circumstances which excite the suspicion of the court, the propounder of the will has the burden to prove affirmatively that the testator knew and approved of the contents of the will. If successfully proven, the burden shifts to the party challenging the will to prove fraud, undue influence or mistake.

Wills prepared by beneficiary

1. Barry v Butlin

When a party prepares a will under which he benefits from it, it becomes a circumstance that excites the suspicion of the court. The Court will not uphold the will unless the suspicion is removed.

In this case, the testator gave nothing to his son. He gave a large amount to his Attorney. However, the suspicions were removed because, amongst others, the testator had been very friendly with the attorney and the will was executed openly in the presence of respectable witnesses.

2. Wintle v Nye

The solicitor made a will for the testatrix, Nye, which disposed of a substantial amount of property for the solicitor. The solicitor didn’t advise Nye to seek independent advice and the will was beyond the understanding of the testatrix. Court held that there was a heavy burden on the solicitor to prove knowledge and approval on behalf of Nye. Will was invalid.

3. Re Dabbs

Testator executed a will which was prepared for him on a computer by the claimant who was a major beneficiary under the will. The principle is that the greater the degree of suspicion, the greater will be the burden of dispelling that suspicion.

4. In Re A Solicitor

A solicitor was struck off the Roll for failing to advise 2 sisters-in-law to seek independent advice when they sought to make wills for the solicitor and his family.

Wills prepared by close relatives of a beneficiary

1. Tyrrell v Painton

Testatrix had made wills in favour of the defendant. However, she later made another will benefiting her cousin instead. The defendant’s son later visited her accompanied by his friend, a strange man. The testatrix made a new will though she was exhausted in favour of the defendant. It was written in the son’s handwriting and witnessed by the son and his friend. The will was invalid.

Principle: Even wills prepared by close relatives of a beneficiary can excite the suspicion of the court. Any well-grounded suspicion will suffice.

Mistake

- Not every mistake will affect knowledge and approval

i) Mistake as to whole will

1. Re Meyer

2 sisters attempted to make a codicil in favour of the other but mistakenly executed the other’s codicil. When the first of them died, it was held that the codicil is not valid as she had not intended to sign it. There was no animus testandi.

ii) Mistake as to legal effect

- A mistake as to the legal effect of the testator’s provision doesn’t affect the validity of the will.

1. Collins v Elstone

Testatrix left 2 wills and a codicil to the 1^st will. The 2^nd will contain a clause revoking all previous dispositions. She did not wish to revoke any earlier testamentary dispositions but the executor said that it wouldn’t. The advice was given mistakenly. Court held that since she knew of the clause, it revoked the earlier will.

iii) Mistake as to contents

-If any part was included by mistake without testator’s knowledge and approval, it can be omitted provided it doesn’t change the sense of the will.

1. In the Goods of Oswald

Testatrix executed a later will not realizing it contained a revocation clause. Court held that the revocation clause can be excluded.

 2. In the Goods of Boehm

Testator intended a bequest to be given to his daughters, Georgiana and Florence. The counsel who drafted the will mistakenly inserted Georgiana in both bequests. Court held that the name Georgiana could be omitted from the bequests intended for Florence.

3. Morrell v Morrell

Testator instructed that all his 400 shares in his company should pass to his nephews. Counsel drafted the gift as comprising forty shares. Courts held that the word could be omitted since the testator didn’t approve the inclusion of the word forty. All shares were passed to the nephew.

Fraud

- Testator is intentionally misled or deceived thus affecting the making of his will.

1. Allen v M’Pherson

The testator, having made large bequests to the appellant in his will, executed a final codicil containing a much smaller gift. It was alleged that this was the result of false representations made about the appellant’s character to the testator who was feeble in mind and boy. It was held that this is fraud.

2. Wilkinson v Joughin

Testator married a married woman. She deliberately concealed the fact from him. Testator described her as his wife in the will. The gift was void due to fraud. However, a gift to her daughter was valid since she was innocent.

3. Re Posner

Facts were similar but the testator was not deliberately misled since neither he nor his wife knew at the time of marriage that the wife was still married. Gift was upheld as there was no fraud.

Undue influence

- Coercion. Whether the influence asserted is coercion or persuasion?

1. Hall v Hall

In this case, the will failed because it was made for the sake of peace in consequence of the violence from the sole beneficiary, his wife.

Principle: If pressure of whatever character is exerted to overpower the volition of the testator in the making of his will, then it is considered as coercion.

2. Parfitt v Lawless

In this case, the priest served as the testatrix’s confessor. He received bulk of the testatrix’s estate under the will. There was no coercion.

Principle: i) No presumption of undue influence arises from the proof of a relationship

                ii) To prove undue influence, it is necessary to prove coercion, i.e. the testator’s                       volition was overborne.

  

a) No presumption

1. Craig v Lamoureux

Husband was the sole beneficiary under the ill wife’s will. He was instrumental in having her prepare a will. However, there was no evidence of coercion.

2. Mynn v Robinson

Wife made a new will departing from a previous will 9 days before her death in an extremely weak state. Presumption of undue influence arose and wasn’t rebutted. The husband had a record of deceptive behaviour. The presumption arose because of the circumstances surrounding the will’s execution.

b) Coercion

1. Wingrove v Wingrove

It is not sufficient to show that a person has the power to coerce the testator. It has to be shown that the power was indeed exercised. Coercion may be present even without actual violence. For instance, if a testator is so old that he is dependent and the caretaker threatens to leave him.

2. Betts v Doughty

Testatrix was 80 years old and attempted to alter her will to exclude the plaintiffs. The plaintiffs told her that if she executed a new will, she could not reside in their house. A solicitor’s clerk brought the new will for execution but was not allowed to see her. Courts upheld the earlier will but imposed a trust on the plaintiffs to hold their shares as trustees for the beneficiaries under the intended will.

3. Re Harden

Testatrix was dominated by a man who allegedly had occult powers as a medium. He passed messages from the other side as to how the testatrix should dispose of her estate. Wills were invalid due to undue influence.

Hampson v Guy – the weaker the testator, the easier to prove undue influence

Boyse v Rossborough – strong evidence of fraud or undue influence must be adduced since the allegations impart an element of moral condemnation.

Re Cutcliffe’s Estate – the party who made the pleas of undue influence would be penalized for costs if their pleas were unsuccessful.