Mental Capacity

Requirements for ValidWill

Will not valid unlessproper formalities are

observed and there isrequisite Mental Capacity

Execution FormalitiesWritingSigned by Testator

Presence of two or more witnesses

Witness to attest

Mental Capacity

Requirements to make a will[Animus Testandi -

intention to executewill]

Testamentary CapacityKnowledge and approval

of Will's content

Of own free will No undue influence or

fraud

Mental CapacityTestamentary CapacityPerson under 18 cannot make

a will unless will is privileged

Section 5 Wills Act

Must have sound mind memoryand understanding

Knowledge and ApprovalT must know and approveof the contents of the Will;he need not know the legal

effect.

Of own free will -

No Undue Influence orFraud

Any misleading of T is fraud;Undue influence is the coercingof T; he who alleges must prove.

May apply to whole orpart of the will

More pressure, more court will invalidate will

Sound mind, memoryand understandingTest is three-foldUnderstand nature of act in which

engaged and implications[understand effect of his wishesbeing carried out on his death]

Understand the extent of property heis distributing

[need not have in mind alldetails of property, disparity may leavecourt in doubt as to state of mind]

Wood v Smith

[where disparity

between 17,000 pound

(which T thought he had)

and 100,000 pound

(which he had in actuality)

caused court to hold

that T lacked capacity

Understand the persons comprising "objects of his

bounty"

Harwood v Baker (1840)

[where terminally ill

T gave entire estate

to wife, though he appreciated

that, he could not distinguish

relatives and competing or "moral"

claims they may have had on his

estate- held to lack capacity - hence

will invalid]

Banks v Goodfellow(1870) LR 5 QB 549

[person who has "an understanding of the nature of the business in which he is engaged - who are theobjects of his bounty and the manner

in which the property is to be distributed among them"

[what he is doingand who gets what]]

Doesnt matter if decision is ill-willedor motives ignoble - will not fail

for capacity

Boughton v Knight (1873)

Insane DelusionsDelusion can deprive Testamentary

Capacity if they influence or capable of influence provisons of the will

Dew v Clerk and Clerk(1826)

[Delusions are "belief in the existenceof something which no rational person couldbelieve and which

could not be eradicated from T's mind by reasoned argument"Father's irrational aversion to

daughter held to affectjudgement when allocatingassets by will, hence held

invalidate]

Banks v Goodfellow[contrasted with Dew

- where T's belief that hewas harassed by evil spirits as well as bycertain dead man,

held as having no potentialimpact on provisions of will

hence will upheld]

Court can omit part of the will affected by insane delusion

Re Bohnrmann'sEstate

[clause in Will affectedby insane delusion was omitted from probate but rest

was granted probate]

T may be Competent in Lucid

IntervalsT may experience occasionalperiods of lucidity though

incompetent generallyAct must be rational

Act must be performed in rational mannerAct must be T's own without assistance

In the Estate of Walker(1912)

[held that Will made duringlucid interval could be valid if - act of T was rational, T performed in rational

manner, T's own act withoutassistance from another]

Time for CapacityT must have testamentary capacity at time of execution

of will. Can be at time

instructions issued to prepare will

IF 1. Will prepared in compliancewith instructions 2. at time of

executing T capableof understanding and understands

that he is executing will for whichhe had issued instructions

Parker v Felgate(1882)

[T gravely ill, but hadcapacity when instruction

solicitor to preparewill disposing most of

estate to children's hospitalin preference to relatives,

will prepared as per instructions, T fell into partial coma, periodicallyaroused, doctor produced willand said "this is your will",will signed on her behalf withher consent - T neither

recalled specific instructions norunderstood different clauses of will, will upheld on basis that at timeof will she understood that

executing a will she had instructedto be prepared]

Battan Singh v Amirchand[1948]

[PC held that such casescalled for great caution- however court wassatisfied by evidence that instructions whichwas passed to third partywas clearly understood

and accurately received by attorney]

Knowledge and ApprovalT must know and

approve of will's content

at time of execution, howeverParker v Felgate principle

may apply here too

Where will appears

valid on face it, presumption arises

that T knew and approvedcontents UNLESSgroup of persons

-illiterate, dumb, or blind

In the Goods of Geale(1864)

[where T used signs ,court required evidence

of sign used]

Evidence required where T blind

or illiterate that will read over toT before execution and he fully

understood and approved of contents [should be

in attestation clause,affidavit can be used also]

Suspicious Circumstancesmay require additionalevidence to satisfy the

court

Barry v Butlin(1838)

[T executed will prepared by solictor who

was major beneficiary underit and T disinherited only son

- evidence put forward thatsatisfied the court]

Wintle v Nye[1959]

(where solicitor

prepared willand codicil and was beneficiary

- burden was on himto prove - numerous factors

weighed heavily against validity- held invalid]

Other circumstances - departure from previous

testamentary dispositions,character of attesting witnesses,

shaky signature, giving benefits tostranger, making no provisions

for closest relatives

see Moonan v Moonan (1963) 7 WIR 420

Of own free will - No Undue Influence or

FraudMay apply to whole or

part of the will

he who alleges must prove.

More pressure, more

court will invalidate will

Any misleading of T is fraud;

Allen v M'Pherson[Testator gave substantial

gifts to appellant inwill then executed codicilthen executed codicilreducing gift - evidenceof difference due to false

representation of appellant's character

-held clear case of fraud]

Undue influence is the coercing

of T

Hall v Hall(1868)

[ pressure of whatever character, whether

acting on the fears or the hopes, if so exerted

as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made ]

Distinction betweenundue coercion andmere persuasion

- appeals to affectionand feelings of

gratitude for past service do not invalidate

Parfitt v Lawless

(1872)[T gave most of estate

to Roman Catholic

preiest who acted

as confessor - held

no evidence of undue

influence]

Wingrove v Wingrove

(1885)[mere immoral influence

does not amount to

undue influence]