Category

Testamentary capacity cases

Other related cases can be found within the Category:Capacity and DOL‎ (eventually they will be re-categorised).

Case and summary Date added Categories
Whittaker v Hancock & Ors [2018] EWHC 3478 (Ch) — "The claimant has brought a claim under section 50 of the Administration of Justice Act 1985 to be appointed as substitute personal representative of the estate of John Parker in place of the second defendant, her mother, and for a caveat entered by the third defendant on 20 July 2016 to be removed. ... The third defendant is the deceased's daughter and opposes the claim. ... In a statement accompanying the Will, signed by the deceased and witnessed by a legal secretary the deceased explains that he has made no provision for the third defendant ... On 20 July 2016 the third defendant caused a caveat to be entered. She subsequently entered an appearance to the claimant's warning asserting that the 2003 Will may be invalid due to the deceased lacking testamentary capacity, being subject to undue influence and want of knowledge and approval. ... Mr Devereux-Cooke submits that I should make an order appointing the claimant as substitute personal representative for the second defendant. The claimant is the attorney for the second defendant, the LPA having been registered on 16 January 2014. The second defendant cannot consent to the claim as she lacks capacity. The first defendant does not oppose the claim. ... It is a general LPA in respect of property and financial affairs that is in wide terms enabling the claimant, as attorney, to make decisions about the second defendant's property and financial affairs. There are no conditions or restrictions specified in the instrument. ... It is also relevant that the second defendant is the sole beneficiary under the 2003 will. She is in a different position to a case where there are a number of beneficiaries. ... I accept Mr Devereux-Cooke's analysis that the claimant has standing to bring this claim under section 50. If I am wrong in my analysis I consider that the position could be remedied by adding the second defendant as a claimant and appointing the current claimant as her litigation friend. I also accept Mr Devereux-Cooke's analysis of rules 31 and 35 of the Non-Contentious Probate Rules 1987 and would have been prepared to treat the claim as including this as an alternative legal route, had it been necessary. ... I consider that in order for the deceased's estate to be administered it is necessary to substitute the claimant as personal representative in place of the second defendant." 2019‑02‑03 22:41:23 2018 cases, Cases, LPA cases - other, Testamentary capacity cases


Gill v Woodall [2009] EWHC B34 (Ch) — "The Claimant disputes the validity of Mrs Gill's will on two grounds. They are: (1) At the time Mrs Gill executed the will she did not know and approve its contents; (2) Mrs Gill executed the will as a result of coercion or pressure exerted by Mr Gill such as to overcome Mrs Gill's volition with the consequence the will was not the result of the free volition of Mrs Gill." 2018‑10‑23 18:37:55 2009 cases, No summary, Testamentary capacity cases, Transcript


James v James [2018] EWHC 43 (Ch) — "There is a preliminary question of law as to the test to be applied for testamentary capacity in a case like this, where the testator has made a will, died, and then the question of capacity has arisen. The traditional test for such a case is that laid down in Banks v Goodfellow (1870) LR 5 QB 549, 565, per Cockburn CJ: 'It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert 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 his mind had been sound, would not have been made.' ... More recently the Mental Capacity Act 2005 has made fresh provision for the law of mental capacity in certain situations. What is unfortunately not made express in that legislation is the extent to which this fresh provision affects the test for capacity to make a will when that question is being judged retrospectively (typically, though not necessarily, post mortem). ... The general rule of precedent, as applied in the High Court, is that that court is not strictly bound by decisions of co-ordinate jurisdiction, but will follow them as a matter of comity unless convinced they are wrong ... As it happens, I think the decision in Walker v Badmin [2014] EWHC 71 (Ch)Not on Bailii [that the test in Banks v Goodfellow not only had survived the enactment of the 2005 Act, but that it, rather than anything in the Act, was still the sole test of capacity for judging will-making capacity in retrospect] is right, and for the reasons given by the deputy judge. ... Whilst it is a complication to have two tests for mental capacity in making wills, one prospective and the other retrospective, it is a complication created by the decision of Parliament to legislate as it has, a decision that the courts must respect." 2018‑01‑22 22:56:10 2018 cases, No summary, Testamentary capacity cases, Transcript


White v Philips [2017] EWHC 386 (Ch), [2017] MHLO 9 — "The claimant, Linda Anne White is the testator's widow. They had married in 1988. They had no children together but each had been married before and each had three children from their respective previous marriages. She contends that at the time he gave instructions and when he signed his will Mr White lacked testamentary capacity with the result that the will is invalid and, since there was no prior will, his estate should be distributed in accordance with the rules relating to intestacy. A pleaded claim to the effect that the execution of the will was obtained by undue influence is no longer being pursued. The only matter for determination therefore is whether at the time Mr White had testamentary capacity." 2017‑03‑06 22:02:49 2017 cases, No summary, Testamentary capacity cases, Transcript


Poole v Everall [2016] EWHC 2126 (Ch), [2016] MHLO 24 — "The claimants are David's brothers ... who had benefited under previous wills prepared with the assistance of the Deputy, including one made on 29 February 2012 of which they seek proof in solemn form, but receive nothing in the December will. They allege that that will was not duly executed, that David lacked testamentary capacity and/or did not know and approve of its contents, and/or that its execution was procured by undue influence on Mr. Everall's part." 2016‑08‑20 21:16:39 2016 cases, No summary, Testamentary capacity cases, Transcript