Hickman v Peacey -
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undue influence
Mental Health Act-
use balance sheet approach instead of substituted judgment approach under Mental Health Act 1983
use
• Mental Health Act 2005
• Parfitt v Lawless (1872)
• Hall v Hall (1868)
• Wingrove v Wingrove (1886)
• Re Cutcliffe’s Estate (1959)
• Re Good (2002)
• Wintle v Nye (1959)
• In the Estate of Fuld (1969)
• Barry v Butlin (1838)
• Tyrell v Painton (1894)
• Re Dabbs (2001)
• Ewing v Bennett (2001)
• Fuller v Strum (2002)
• Reynolds v Reynolds (2005)
• Franks v Sinclair (2006)
• Re Edwards (2007)
• Devas v Mackay (2009)
• Gill v Woodall (2010)
• Hubbard v Scott (2011)
• Wharton v Bancroft (2011)
• Re P (2009)
• Re M (2009)
• Re D (2010)
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Q3.
Hindmarsh v Charlton, Re Chalcraft and Wood v Smith
Casson v Dade
Re Groffman
Langbein, J. H. (1975) ‘Substantial compliance with the Wills Act’ 88 Harvard Law
Review 489. (44 pages)
Borkowski, A. [2000] ‘Reforming section 9 of the Wills Act’ 64 Conv 31.
In my view, too lax in certain respects.
- reducing the possibility for fraud and abuse.
- substantially complied with the required formalities could be upheld
- Some problems with section 9
“No will shall be valid unless:
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his
direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
the signature is made or acknowledged by the testator in the presence of two or more
witnesses present at the same time; and
(d) each witness either--
(i) attests and signs the will; or
(ii) acknowledges his signature,
<<<<1 .="" date="" no="" p="" required="">Corbett v. Newey - “Lack of a date or the inclusion of the wrong date cannot invalidate a will”.
Several important reasons:
-easier to determine
testator's capacity: there will be a date to which any relevant evidence can be specifically related.
- the
interpretation of a will can depend on the date of execution.
References to
persons are interpreted as at the date of execution unless there is a
contrary intention expressed in the will (Re Whorwood)
- the interpretation of
descriptions of property where a contrary intention appears in the
will to displace the basic rule under section 24 of the Wills Act 1837
- more than one will, necessary to determine the
order of execution given the possibility of express or implied revocation.
- would not be a major inconvenience
- reduce the sort of confusion which arose in Corbett v. Newey with unfortunate consequences: the mistaken belief (under the current law) of the testatrix that a will had to be dated was partly responsible
Problems of such requirement
- not dated, or if it were dated incorrectly.
Solution: upheld as valid if the other formalities were satisfied and the intention of the testator
was clear.
<<<<2 .="" p="" signature="">Hindmarsh v. Charlton - “there must either be the name or some mark which is intended to represent the name”
- writing part of the name sufficed in Re Chalcraft but not in Re Colling.
because “what she wrote was intended by her to be the best that she could do by way of writing her name”.
- In Re Colling- was neither the name itself nor was it some mark which was intended to represent the name
Problem with this approach - imposes an unduly narrow meaning on signature by equating it with completed signature.
- these difficulties can be avoided by focusing on the intention of the testator and taking a broad view of the meaning of a “mark”. The court ought to have held that the execution was good because the testator could readily be said to have made a mark intended to represent his signature.
-suggest adding to section 9 to define “signature” as “a mark or marks intended to represent the testator's name”.
<<<<3 .="" p="" presence="">- presence means both mental and physical presence: Brown v. Skirrow.
- odd rule, if it is the witnesses who are signing, it is enough that the testator could have seen them signing, even if he did not look at what they were doing at that moment.
- Casson v. Dade: witnesses signed the will in an attorney's office while the testatrix was sitting in her carriage outside. It seems that at the moment of attestation she could have seen them signing if she had chosen to look, although there was no evidence that she had done so
- In my view it should be prima facie invalid
- very artificial and highly dubious distinctions.
- Brown v. Skirrow, the will failed partly because one of the witnesses had his view obstructed by a person to whom he was talking, even though there would have been a line of sight if, say, either of them had shuffled
slightly to the right or left.
- the problem is what to put instead.
In “Substantial Compliance with the Wills Act”, Langbein argued that formalities
had four main functions in will-making:
A. to provide
reliable evidence of the testator's intentions as expressed in the will;
B. to channel testators and witnesses into standardised forms of behaviour so as to achieve broad uniformity C. to caution the testator that he is engaging in a serious enterprise;
D. to protect him as far as reasonably possible against fraud, undue influence and forgery.
- physical presence should be defined as requiring the testator and the witnesses to see rather than just having the opportunity to see.
Some judicial support for this view from the decision in Couser v. Couser.
- Seeing could be assumed unless it was shown that it had not occurred.
<<<<4 .="" other="" p="" person="" some="">Section 9(a) allows “some other person” to sign on behalf of the testator providing this is done in the
presence and by the direction of the testator.
- can sign in his own name or that of the testator.
- obvious potential for fraud and undue influence in such a case.
- The original justification illiterate testator, illness or disability
- should confine the signing of a will by an amanuensis (
謄寫員) to cases where the testator cannot sign because of illness or disability, and illiteracy.
>>>> 5. Acknowledgment
- no statutory definition of acknowledgment.
- wide meaning. any form of recognition will suffice. Hudson v. Parker - “in any words which will
adequately convey the idea”. Weatherhill v. Pearce - mere request by the testatrix that the witnesses should sign her will was held to be sufficient.
- by gesture.
- Couser v. Couser went too far, in my view, in stretching the meaning of acknowledgement.
- In that case, a witness was held to have acknowledged her signature when she continued to protest her doubts about the validity of that signature and the testator's will.
- an acknowledgment: he accepts the signature as his own
- acknowledgment should be defined as the intentional recognition of a person's signature as their own valid
signature.
>>>> 6. Witness
(a) Minimum age
- Wilson v. Beddard: aged 14, ok
- underestimates the function of the witness. They may be required to give evidence as to
the testator's capacity
(b) Minimum number
- strong argument for increasing the minimum to three.
- too simple and cosy to call at the friendly couple next door to get the will witnessed.
- provide greater protection against fraud.
- more likelihood of witnesses surviving and thus be able to give evidence, about the TOR's capacity
(c) Simultaneous presence
- The Law Reform Committee considered the suggestion that witnesses should be required to sign in each other's presence but did not think that a clear case existed for recommending a change.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
- “Because it provides a further safeguard against the dangers of duress and undue influence, we think
it right that witnesses should sign or acknowledge their signature in each other's presence”.24
Moreover, the Law Reform Committee recognised that in practice witnesses normally did sign in each
other's presence, a practice which the Committee commended. It does seem odd that the Committee,
having stated that it was “right” that witnesses should sign in each other's presence, should then fail
to recommend the appropriate change, an overly cautious and timid response (or lack of it) to this
issue. Requiring simultaneous presence when the witnesses are signing would give added protection
to the testator since it would reduce the possibility that he had acted under undue influence. And it
would provide more reliable evidence of the circumstances of the will's execution than is the case at
present. If a witness signs in the presence only of the testator--as can happen under the current
law--there will be no evidence of the circumstances of that signing other than that of the witness
concerned. Furthermore, the likelihood is increased of there being conflicting accounts by the
witnesses as to the issue of the “presence” of the testator (since the signing by the witnesses can
take place at different times). Such difficulties can be avoided by requiring the simultaneous presence
of the witnesses when signing.
Attestation clause
An attestation clause should be included in any properly executed will as its presence aids the task of
proving the validity of the will where doubts exist about its execution. For example, it is easier to apply
the presumption of due execution25 if a will contains an attestation clause. Moreover, if section 9 were
to require that the testator and witnesses actually saw each other signing or *Conv. 41
acknowledging their signatures, as suggested earlier, the attestation clause could be used to record
that fact and thus to provide affirmative evidence of due execution. There is then some argument for
making an attestation clause essential in a will, but such a requirement could create more difficulties
than it solved (for example, it might prove problematic to draft an appropriate statutory attestation
clause for inclusion in section 9).
An attestation clause is not necessary under the current law but section 9 deals with the matter in a
rather odd manner by stating “but no form of attestation shall be necessary”. I suggest the deletion of
those words as they appear to have little purpose and sit uneasily in a section which determines what
must be done. It could be argued that the words draw the attention of will makers to the possibility of
incorporating an attestation clause, but if that is the case, it is a potentially confusing way of doing so.
An amended section 9
I suggest that section 9 be amended to read as follows:
“No will shall be valid unless
(a) it is in writing, states the date on which it was executed and is signed by the testator, or by some
other person in his presence and by his direction where the testator is unable to sign the will; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of three or more witnesses
of adult age present at the same time; and
(d) each witness either--
(i) attests and signs the will; or
(ii) acknowledges his signature,
Conclusion:
- discretion to dispense with minor breaches of formalities : several Commonwealth jurisdictions.
- Queensland Succession Act 1981, section 9:
court may admit to probate a will “executed in substantial compliance with the formalities prescribed
by this section if the Court is satisfied that the instrument expresses the testamentary intention of the
testator.
- overall increase in litigation can be expected
