Law of Wills Case Law Flashcards
Banks v Goodfellow (1880)
British case
Question of whether a man with intermittent mental health delusions/episodes can have written a valid will.
“The testator] must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.”
Re: O’Reilly [2022]
Testator with advanced dementia. Irish court utilizing Banks precedent/test:
1, Was she capable of making a will with an understanding of the nature of the business in which she is engaged? (Yes, she contacted her solicitor and asked for this service.)
2. Did she have a recollection of the property she means to dispose of? (Yes, collected financial statements for analysis.)
3. Did she understand who was to receive the bounty and the manner which it is to be distributed to them? (Yes, as was demonstrated when she updated her will after the passing of her sister.)
What are the requirements for a will?
- It must be in writing.
- It has to be signed at the foot or the end by the testator or an agent directed by them to do so.
- Two witnesses must sign. Although they do not have to sign in the presence of each other, they do have to attest they saw the testator sign the will. They do not have to know the contents of the will.
- The placement/spacing of the testator’s signature shall not invalidate the will
- . A signature shall not be operative to give effect to any disposition or direction inserted after the signature is made.
Re Goods of Kieran [1933]
Irish law
Initials of testator used as a will signature on his death bed. Even though the Court didn’t really find the signature legible, they found the will valid
Re Goods of Rice (1870)
Irish law
Two blank pages between substance of will and the signature page. Court found will valid.
Derinzy v Turner
Irish Law
Testator and witness signed will on the third page, even though there was plenty of space alloted on the second for a signature and the third page just had an attestation clause on it - Court held the will still valid
Shires v Glascock (1687)
British law
The will was witnessed by two witnesses from another room at a distance of around 7 yards from the testator and through a broken window. The court held that the will was valid.
Re: Devlin [1939]
Irish law
The testator asked her bank manager and his clerk to witness a document without confirming
that it was her will. The court held that the resulting document was properly witnessed.
Clark v Early
Irish law
The will was signed by the testator and two other persons but there was no attestation clause indicating that the witnesses had attested the testator’s signature. There was some suggestion that the second witnesses signature might have been forged but by the time that the will was produced for probate both witnesses were dead.
Will found invalid because of the absence of an attestation clause and that there was insufficient evidence to admit the will in the absence of evidence confirming that the witness signatures were genuine
Re: Delahunty [2021]
Irish law
Carbon copy of will accepted as valid.
True/false: a witness can receive items in the will they are witnessing.
False. A gift or bequest in a will which is made to an attesting witness is absolutely void. (Just the gift is void–not the entire will.)
Re: Willis (1927)
Irish law
Will was already properly signed by testator and two witnesses. On death bed, brother asked his sister, who was the main beneficiary, to add her signature additionally to put his mind at ease. She did so.
Court held will to be valid since it had already had the proper amount of valid witness signatures
Welch v Phillips (1836)
British
Lady had a later version of a will which could not be found after her death.
Where a will is known to have been made but cannot be found there is a presumption that the
will was intentionally destroyed by the testator.
Sugden v Lord St Leonards (1879)
British
Will was lost but contents found valid when it could be recited by memory from testator’s daughter, who had had her read it to him every night for many years
Re: Patterson
IRish law
The general rule of interpretation is that the court should attempt to carry out the testator’s intentions as expressed in the will
Thorn v Dickens
The will simply stated “All to mother”. Evidence was given that the testator habitually referred to his wife as “mother”
Court should put themselves in the testator’s shoes (armchair principle)
Re: Julian [1950]
Deceased Protestant appears to have possibly left money to a Catholic charity because their solicitor recorded an incorrect name/address for the charity in question, and the Catholic/Protestant charities had very similar names.
The High Court held that extrinsic evidence cannot be admitted to vary the contents of the will itself and that as a result the Catholic charity, being the one indicated in the will, was entitled to the bequest despite the fact of the testator’s religious affiliation
This has now been changed partially, as extrinsic evidence is now allowed to explain contradictions or help in construction of will (see Rowe)
Rowe v Law [1978]
Here the Supreme Court held that the section 90 only permits extrinsic evidence to be admitted
in construction cases where
(a) it is of assistance in explaining the testator’s intention and (b) where there is an ambiguity or contradiction in the will.
Heron v Ulster Bank [1974]
Northern Ireland case
Set out Lowry’s Principles for the interpretation of wills
- Read the immediately relevant portion of the will as a piece of English and decide ifpossible, what it means.
- Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest
the need for modification in order to make harmonious sense of the whole or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved. - If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
- One may at this stage have resort to rules of construction, where applicable, and aids such as the presumption of early vesting and the presumption against intestacy and in
favour of equality. - Then see whether any rule of law prevents a particular interpretation from being adopted.
- Finally, and I suggest not until the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words,
rarely as binding precedents, since it has been well said that ‘no will has a twin brother’ … but more often as example … of how judicial minds nurtured in the same discipline have interpreted words in similar contexts.
British case
Question of whether a man with intermittent mental health delusions/episodes can have written a valid will.
“The testator] must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.”
Banks v Goodfellow (1880)
Testator with advanced dementia. Irish court utilizing Banks precedent/test:
1, Was she capable of making a will with an understanding of the nature of the business in which she is engaged? (Yes, she contacted her solicitor and asked for this service.)
2. Did she have a recollection of the property she means to dispose of? (Yes, collected financial statements for analysis.)
3. Did she understand who was to receive the bounty and the manner which it is to be distributed to them? (Yes, as was demonstrated when she updated her will after the passing of her sister.)
Re: O’Reilly [2022]
Irish law
Initials of testator used as a will signature on his death bed. Even though the Court didn’t really find the signature legible, they found the will valid
Re Goods of Kieran [1933]
Irish law
Two blank pages between substance of will and the signature page. Court found will valid.
Re Goods of Rice (1870)
Irish Law
Testator and witness signed will on the third page, even though there was plenty of space alloted on the second for a signature and the third page just had an attestation clause on it - Court held the will still valid
Derinzy v Turner
British law
The will was witnessed by two witnesses from another room at a distance of around 7 yards from the testator and through a broken window. The court held that the will was valid.
Shires v Glascock (1687)
Irish law
The testator asked her bank manager and his clerk to witness a document without confirming
that it was her will. The court held that the resulting document was properly witnessed.
Re: Devlin [1939]
Irish law
The will was signed by the testator and two other persons but there was no attestation clause indicating that the witnesses had attested the testator’s signature. There was some suggestion that the second witnesses signature might have been forged but by the time that the will was produced for probate both witnesses were dead.
Will found invalid because of the absence of an attestation clause and that there was insufficient evidence to admit the will in the absence of evidence confirming that the witness signatures were genuine
Clark v Early
Irish law
Carbon copy of will accepted as valid.
Re: Delahunty [2021]
Irish law
Will was already properly signed by testator and two witnesses. On death bed, brother asked his sister, who was the main beneficiary, to add her signature additionally to put his mind at ease. She did so.
Court held will to be valid since it had already had the proper amount of valid witness signatures
Re: Willis (1927)
British
Lady had a later version of a will which could not be found after her death.
Where a will is known to have been made but cannot be found there is a presumption that the
will was intentionally destroyed by the testator.
Welch v Phillips (1836)
British
Will was lost but contents found valid when it could be recited by memory from testator’s daughter, who had had her read it to him every night for many years
Sugden v Lord St Leonards (1879)
IRish law
The general rule of interpretation is that the court should attempt to carry out the testator’s intentions as expressed in the will
Re: Patterson
The will simply stated “All to mother”. Evidence was given that the testator habitually referred to his wife as “mother”
Court should put themselves in the testator’s shoes (armchair principle)
Thorn v Dickens
Deceased Protestant appears to have possibly left money to a Catholic charity because their solicitor recorded an incorrect name/address for the charity in question, and the Catholic/Protestant charities had very similar names.
The High Court held that extrinsic evidence cannot be admitted to vary the contents of the will itself and that as a result the Catholic charity, being the one indicated in the will, was entitled to the bequest despite the fact of the testator’s religious affiliation
This has now been changed partially, as extrinsic evidence is now allowed to explain contradictions or help in construction of will (see Rowe)
Re: Julian [1950]
Here the Supreme Court held that the section 90 only permits extrinsic evidence to be admitted
in construction cases where
(a) it is of assistance in explaining the testator’s intention and (b) where there is an ambiguity or contradiction in the will.
Rowe v Law [1978]
Northern Ireland case
Set out Lowry’s Principles for the interpretation of wills
- Read the immediately relevant portion of the will as a piece of English and decide ifpossible, what it means.
- Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest
the need for modification in order to make harmonious sense of the whole or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved. - If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
- One may at this stage have resort to rules of construction, where applicable, and aids such as the presumption of early vesting and the presumption against intestacy and in
favour of equality. - Then see whether any rule of law prevents a particular interpretation from being adopted.
- Finally, and I suggest not until the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words,
rarely as binding precedents, since it has been well said that ‘no will has a twin brother’ … but more often as example … of how judicial minds nurtured in the same discipline have interpreted words in similar contexts.
Heron v Ulster Bank [1974]
