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 1st
will. The 2nd 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.
