Law of Wills Case Law

Question 1

Banks v Goodfellow (1880)

Answer 1

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.”

Question 2

Re: O’Reilly [2022]

Answer 2

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.)

Question 3

What are the requirements for a will?

Answer 3

1. It must be in writing.
2. It has to be signed at the foot or the end by the testator or an agent directed by them to do so.
3. 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.
4. The placement/spacing of the testator’s signature shall not invalidate the will
5. . A signature shall not be operative to give effect to any disposition or direction inserted after the signature is made.

Question 4

Re Goods of Kieran [1933]

Answer 4

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

Question 5

Re Goods of Rice (1870)

Answer 5

Irish law
Two blank pages between substance of will and the signature page. Court found will valid.

Question 6

Derinzy v Turner

Answer 6

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

Question 7

Shires v Glascock (1687)

Answer 7

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.

Question 8

Re: Devlin [1939]

Answer 8

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.

Question 9

Clark v Early

Answer 9

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

Question 10

Re: Delahunty [2021]

Answer 10

Irish law
Carbon copy of will accepted as valid.

Question 11

True/false: a witness can receive items in the will they are witnessing.

Answer 11

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.)

Question 12

Re: Willis (1927)

Answer 12

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

Question 13

Welch v Phillips (1836)

Answer 13

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.

Question 14

Sugden v Lord St Leonards (1879)

Answer 14

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

Question 15

Re: Patterson

Answer 15

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

Question 16

Thorn v Dickens

Answer 16

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)

Question 17

Re: Julian [1950]

Answer 17

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)

Question 18

Rowe v Law [1978]

Answer 18

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.

Question 19

Heron v Ulster Bank [1974]

Answer 19

Northern Ireland case
Set out Lowry’s Principles for the interpretation of wills

1. Read the immediately relevant portion of the will as a piece of English and decide ifpossible, what it means.
2. 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.
3. If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4. 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.
5. Then see whether any rule of law prevents a particular interpretation from being adopted.
6. 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.

Question 20

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.”

Answer 20

Banks v Goodfellow (1880)

Question 21

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.)

Answer 21

Re: O’Reilly [2022]

Question 22

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

Answer 22

Re Goods of Kieran [1933]

Question 23

Irish law
Two blank pages between substance of will and the signature page. Court found will valid.

Answer 23

Re Goods of Rice (1870)

Question 24

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

Answer 24

Derinzy v Turner

Question 25

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.

Answer 25

Shires v Glascock (1687)

Question 26

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.

Answer 26

Re: Devlin [1939]

Question 27

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

Answer 27

Clark v Early

Question 28

Irish law
Carbon copy of will accepted as valid.

Answer 28

Re: Delahunty [2021]

Question 29

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

Answer 29

Re: Willis (1927)

Question 30

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.

Answer 30

Welch v Phillips (1836)

Question 31

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

Answer 31

Sugden v Lord St Leonards (1879)

Question 32

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

Answer 32

Re: Patterson

Question 33

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)

Answer 33

Thorn v Dickens

Question 34

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)

Answer 34

Re: Julian [1950]

Question 35

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.

Answer 35

Rowe v Law [1978]

Question 36

Northern Ireland case
Set out Lowry’s Principles for the interpretation of wills

1. Read the immediately relevant portion of the will as a piece of English and decide ifpossible, what it means.
2. 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.
3. If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4. 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.
5. Then see whether any rule of law prevents a particular interpretation from being adopted.
6. 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.

Answer 36

Heron v Ulster Bank [1974]