Chp3 :
Hoff v Atherton:
Banks v Goodfellow was applied. Although the testatrix suffered from
dementia (痴呆) and the burden of proving capacity rested on the defendant,
and although the defendant’s involvement in the preparation of the will
also required proof that the testatrix had knowledge and approval, the
will was valid. The Court of Appeal stated that the test of capacity was
issue-specific (i.e. it must be considered in relation to the particular
transaction, its nature and its complexity). The will was a straightforward
one and it had been witnessed by an independent solicitor.
Sharp v Adam
The Court of Appeal upheld the decision of the trial judge to the effect
that the testator, who had made his will while in the final stages of
severely debilitating (身體虛弱的)progressive multiple sclerosis (硬化), had ‘crossed an
imprecise divide’. He lacked the capacity to arrive at a rational judgment
and there had been an inexplicable poisoning of his affection for his
daughters.
**Kostic v Chaplin
The deceased, who died in 2005, had made a will in 1988 and another in
1989, both in favour of the Conservative Party. His son, who had
benefited under earlier wills, alleged lack of capacity. It was common
ground that, from the 1980s, the deceased had suffered from a mental
illness which caused him to believe that members of his family were
implicated (有牽連) in an international conspiracy of dark forces against him. It
was held that the deceased’s natural affection for his son had been
poisoned by his delusions. Banks v Goodfellow applied. The deceased
lacked testamentary capacity when he made the 1988 and 1989 wills
and so his £8,000,000 estate passed to his son.
Re Loxston
A will prepared by a professional will draftsman for a 97-year-old
woman, against whom an enduring power of attorney had been
registered, was refused probate on the ground that the woman lacked
capacity. The draftsman had been summoned by the woman’s carer and
the will was (to a significant extent) in the carer’s favour. Some may
wonder why such a will was set aside for lack of capacity rather then
undue influence. Could not undue influence be presumed? The standard
response is that it could not, but it does seem odd that it is so difficult to
set such a will aside. The final result in this case, the setting aside of the
will, must be correct, but the costs of the case would have been
significant and (although this is not mentioned in the report) will almost
certainly have come from the estate.
Blackman v Man
A childless widow left her estate to a couple from a Chinese takeaway
who had befriended her. The will was challenged by nephews and nieces,
but there was not sufficient evidence of lack of capacity and the will was
upheld.
Couwenbergh v Valkova ??
A series of wills made by a 90-year-old testatrix, by which she excluded
her family who had been beneficiaries under an earlier will in favour of a
woman who had power of attorney for her, were duly executed, but were
invalid because she did not have testamentary capacity due to her
moderate to severe dementia. The solicitor involved did not actually
meet the deceased and was not present at the execution of any will.
Re Ritchie, Ritchie v Nat Osteoporosis Soc
The will, which was prepared by a solicitor and witnessed by a doctor
(thus abiding by ‘the golden rule’), disinherited the testatrix’s children
and left all her property to charity. It was refused probate on the
ground that the testatrix suffered from paranoia (unreasonable belief) and had been subject
to delusions.
Marley v Rawlings
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