Cases Flashcards
Banks v Goodfellow (1870)
The test for mental capacity
the testator must have understood:
i) they were making a will which would come into effect on death, and not some other document
ii) the extent of their property
iii) the moral claims of their generosity
Scammell v Farmer (2008)
Mental capacity
The test in Banks v Goodfellow (1870) should still be followed as the Mental Capacity Act 2005 was not intended to supersede this test
Simon v Byford (2014)
Mental capacity
The decision in Scammell v Farmer (2008) was followed in this case- the test in Banks v Goodfellow (1870) should be followed as the MCA 2005 was not intended to supersede the test.
Re Walker (2014)
Mental capacity
The decision in Scammell v Farmer (2008) was followed in this case- the test in Banks v Goodfellow (1870) should be followed as the MCA 2005 was not intended to supersede the test.
Schrader v Schrader (2013)
Mental capacity
The testator must be able to recall the property that they own and, although it is not necessary for the testator to know the precise value and nature of their estate, they must have a broad understanding of their property.
In the Estate of Park (Deceased) (1954)
Mental capacity
A greater degree of mental capacity is required to make a more complicated will.
Key v Key (2010)
Mental capacity
The court took into account the effect of a recent bereavement upon the testator’s mental capacity.
Re Wilson (Deceased) (2013)
Mental capacity
The law in Key v Key (2010) was followed in this case. The court took into account the effect of a recent bereavement upon the testator’s mental capacity.
Cartwright v Cartwright (1793)
Mental capacity
The court has to consider situations where the testator has made a will during a lucid interval. The court can only base its decision upon the available evidence of the testator’s state of mind on the day in question.
Richards v Allan (2000)
Mental capacity
The court has to consider situations where the testator has made a will during a lucid interval. The court can only base its decision upon the available evidence of the testator’s state of mind on the day in question.
Kostic v Chaplin and Others (2007)
Mental capacity
The court has to consider situations where the testator has been suffering from an insane delusion which no rational person would believe.
Re Ritchie (2009)
Mental capacity
The court has to consider situations where the testator has been suffering from an insane delusion which no rational person would believe.
Parker v Felgate (1883)
Mental capacity rule
Where a will is drafted by a solicitor, a testator is deemed to have had sufficient mental capacity if they had capacity at the time they gave instructions to the solicitor, and the will was prepared in accordance with the instructions. At the time of execution, the testator must understand they are executing a will for which they had previously given instructions.
Perrins v Holland and Other (2010)
Mental capacity rule
Where a will is drafted by a solicitor, a testator is deemed to have had sufficient mental capacity if they had capacity at the time they gave instructions to the solicitor, and the will was prepared in accordance with the instructions. At the time of execution, the testator must understand they are executing a will for which they had previously given instructions.
Burgess v Hawes (2013)
Mental capacity
Burden of proof lies upon the person challenging the will to rebut the presumption that where a will appears rational, there is capacity. Strong evidence was required to prove that a testator lacked capacity when an experienced solicitor prepared the will and made a contemporaneous note of their view that they had capacity.
Pearce v Beverley (2013)
Mental capacity
Burden of proof lies upon the person challenging the will to rebut the presumption that where a will appears rational, there is capacity. Strong evidence was required to prove that a testator lacked capacity when an experienced solicitor prepared the will and made a contemporaneous note of their view that they had capacity.
Kenward v Adams (1975)
Mental capacity- Golden rule
The court takes into account available medical evidence and the contemporaneous notes of the will drafter. The golden rule- it is important to obtain medical evidence on the testator’s mental capacity where there is doubt, to assist the court should the will be contested on the basis of lack of capacity.
Wharton v Bancroft (2011)
Mental capacity- Golden rule
Following the rule in Kenward v Adams (1975)- the court takes into account available medical evidence and the contemporaneous notes of the will drafter. The golden rule- it is important to obtain medical evidence on the testator’s mental capacity where there is doubt, to assist the court should the will be contested on the basis of lack of capacity.
Williams v Wilmot (2012)
Mental capacity- Golden rule
Following the rule in Kenward v Adams (1975)- the court takes into account available medical evidence and the contemporaneous notes of the will drafter. The golden rule- it is important to obtain medical evidence on the testator’s mental capacity where there is doubt, to assist the court should the will be contested on the basis of lack of capacity.
Cheese v Lovejoy (1877)
Revocation by destruction
Hobbs v Knight (1938)
Revocation by destruction
Perkes v Perkes (1820)
Revocation by destruction
In the Goods of Dadds (1857)
Revocation by destruction
The act of destructions must be carried out by the testator or some other person in their presence at their instruction.
Gill v Gill (1989)
Revocation by destruction
The act of destructions must be carried out by the testator or some other person in their presence at their instruction.
Re De Kremer (1965)
Revocation by destruction
The act of destructions must be carried out by the testator or some other person in their presence at their instruction.
In this case the revocation was invalid as a solicitor destroyed the will following telephone instructions from the testator. Intention to revoke is essential but not sufficient alone.
Brunt v Brunt (1973)
Mental capacity to revoke
Gill v Gill (1909)
Mental capacity to revoke
Re Booth (1926)
Mental capacity to revoke
The will was accidentally destroyed by fire and this was not revoked because the act of destruction was not intentional.
Re Southerden (1925)
Intention to revoke
The intention to destroy is not the same as intention to revoke.
The deceased made a will leaving his estate to his wife before travelling to America. Upon his return he burned the will saying that as he had returned safely his estate would pass to his wife on intestacy. This was not the case and the deceased was mistaken.
It was held the will had not be revoked even though it had been physically destroyed.
Re Finnemore Deceased (1992)
The doctrine of dependent relative revocation
The intention to revoke an earlier will is conditional upon a later will being valid.
An express revocation clause was held to be conditional upon a later provision being valid.
The court allowed an application for conditional revocation- this shows the importance of testators intention.
Lambell v Lambell (1831)
Intention to revoke
If a will that was known to be in the testators possession cannot be found on death, there is a presumption that it has been destroyed with the intention of revoking it.
If a will which has been in the testator’s possession is found to be torn at the time of their death, it is presumed it was destroyed by the testator with the intention to revoke.
Both presumptions are rebuttable by evidence.
Welch v Philips (1836)
Intention to revoke
If a will that was known to be in the testators possession cannot be found on death, there is a presumption that it has been destroyed with the intention of revoking it.
If a will which has been in the testator’s possession is found to be torn at the time of their death, it is presumed it was destroyed by the testator with the intention to revoke.
Both presumptions are rebuttable by evidence.
Sugden v Lord St Leonards (1876)
Intention to revoke
If a will that was known to be in the testators possession cannot be found on death, there is a presumption that it has been destroyed with the intention of revoking it.
If a will which has been in the testator’s possession is found to be torn at the time of their death, it is presumed it was destroyed by the testator with the intention to revoke.
Both presumptions are rebuttable by evidence.
Re Freeman (1910)
Intention to revoke
Intention to revoke a will must be unambiguous.
Kitcat v King (1930)
Intention to revoke
Will’s usually contain a revocation clause expressly revoking previously made wills, codicils and other testamentary dispositions however, describing a will as the ‘last will’ does not constitute express revocation.
Re Durrance (1872)
Intention to revoke
The revocation need not be contained in a will provided the document is executed in accordance with s9 WA 1837.
A testator wrote to his brother requesting him to collect and destroy his will.
Re Wayland (1951)
Knowledge & approval
An express revocation clause may not be effective if there is lack of knowledge and approval. May have been included as a mistake as to its legal effect.
Lowthorpe-Lutwidge v Lowthorpe Lutwidge (1935)
Knowledge and approval
An express revocation clause may not be effective if there is lack of knowledge and approval. May have been included as a mistake as to its legal effect.
Pepper v Pepper (1870)
Implied revocation
An earlier will or codicil is impliedly revoked by a later will or codicil. Where the provisions of the will are inconsistent, the later one revokes the earlier either wholly or in part.
The difficulty is in ascertaining the testators intention and the court is faced with the question of construing the clauses contained in the testamentary instruments. The court will admit extrinsic evidence to assist.
