Testamentary capacity: When capacity fluctuates

Joseph de Lacey and Rowan Cope update practitioners on the High Court’s current approach to interpreting testamentary capacity It is striking that what appeared to be settled conclusions by respected professionals made contemporaneously with the execution of the disputed will… could be partially displaced by a misunderstanding as to the scale of the difference between …
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Probate: Promises, promises

The parable of the prodigal son has resonance in modern probate disputes. Alex Troup discusses ‘The judge’s finding that the deceased had deliberately broken the agreement to equalise the balance between her two children explained the difference between her old will and the disputed will.’ The parable of the prodigal son has all the makings …
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James v James [2018] EWHC 43 (Ch)

Wills & Trusts Law Reports | Winter 2018 #170

The deceased was a self-made man who had operated a farming business and a haulage company in partnership with his wife (the third defendant) and his son (the claimant). Over the course of his life, he purchased a number of parcels of agricultural land in Dorset. In 2007 he gave two of these parcels to one of his daughters (the first defendant). In 2009 the partnership dissolved, and the deceased transferred one of the parcels to himself and the third defendant to hold jointly. At the same time the claimant was given one of the parcels and the haulage business.

The deceased died i...

White v Philips
 [2017] EWHC 386 (Ch)

Wills & Trusts Law Reports | Winter 2018 #170

The deceased, Raymond Ian White, died on 22 July 2010, a year after he was diagnosed with terminal cancer. On 28 May 2010 he gave instructions for a will to a legal executive at a local law firm; this will was executed on 4 June 2010.

The claimant, Linda White, was the deceased’s widow. The defendant was one of his three children from a previous marriage, and was appointed executrix by the June 2010 will. Mrs White claimed that at the time the deceased gave the instructions and executed the will he lacked testamentary capacity, partly due to the strong opioid drugs he was taking. ...

Capacity: Importance of the golden rule

Kevin Kennedy and Andrew Walls report on the test in Banks v Goodfellow ‘This judgment provides very significant support that the Banks v Goodfellow test is the sole test for the court to apply when judging testamentary capacity post mortem.‘ The High Court in James v James [2018] has ruled that the test in Banks …
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Ball v Ball [2017] 1 EWHC 1750 (Ch)

Wills & Trusts Law Reports | Autumn 2017 #169

The Deceased was married to James Ball. They had had eleven children, including the three claimants and eight of the nine defendants. In or around 1991, the family split, when the three claimants reported their father to the police for sexually abusing them when they were younger. The Deceased felt that the complaints were exaggerated, and was annoyed that they had been made public. As a result, on 27 May 1992 the Deceased made a will excluding those three claimants from benefit, dividing her estate between her eight remaining children and one of her grandsons. The will was professional ...

Edkins v Hopkins & ors [2016] EWHC 2542 (Ch)

Wills & Trusts Law Reports | January/February 2017 #166

The claimant was a friend and business colleague of Philip Hopkins, and the executor and main beneficiary under Mr Hopkins’ will dated 6 June 2014. The will draftsman, a partner in a law firm, attended Mr Hopkins at his home with two members of the firm’s staff who witnessed his signature. During the execution of the will, she noticed that Mr Hopkins was unwell and later that day he was readmitted into hospital. He died ten days later on 19 August 2014, having been diagnosed with unspecified alcoholic liver damage.

The claimant brought a claim to prove the validity of the 2014 wil...

Wills: Crossing a line

Brendan Cotter considers how likely a claim against a testamentary predator is to succeed ‘The classic sign of undue influence is the main beneficiary being active in the preparation of a will in which they take a substantial benefit.’As Hilaire Belloc wrote in Dedicatory Ode 1910: ‘The question’s very much too wide, and much too …
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Elliott v Simmonds & anr [2016] EWHC 732 (Ch)

Wills & Trusts Law Reports | October 2016 #163

Kenneth William Jordan (Mr Jordan) died on 4 August 2012 leaving a wife (from whom he was estranged) and two adult children. The claimant was Mr Jordan’s partner during the last years of his life and the first defendant was his daughter from a relationship that predated his marriage. He had previously made a will giving pecuniary legacies to the first defendant and two of his sisters with the residuary estate passing to the claimant. Subsequently, in January 2012, Mr Jordan gave instructions to Mr Mumford (who was his brother-in-law), a solicitor with the firm Melia Mumford, to mak...

Testamentary Capacity: Facing the facts

McCabe v McCabe [2015] reaffirms the legal test for testamentary capacity in Banks v Goodfellow [1875]. Simrun Garcha reports ‘The court must consider all the relevant evidence and draw inferences from the material in reaching its decision as to whether the propounder of the will has proved the testator knew and approved its contents.’ The …
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