Cases

Question 1

Banks v Goodfellow (1870)

The test for mental capacity

Answer 1

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

Question 2

Scammell v Farmer (2008)

Mental capacity

Answer 2

The test in Banks v Goodfellow (1870) should still be followed as the Mental Capacity Act 2005 was not intended to supersede this test

Question 3

Simon v Byford (2014)

Mental capacity

Answer 3

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.

Question 4

Re Walker (2014)

Mental capacity

Answer 4

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.

Question 5

Schrader v Schrader (2013)

Mental capacity

Answer 5

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.

Question 6

In the Estate of Park (Deceased) (1954)

Mental capacity

Answer 6

A greater degree of mental capacity is required to make a more complicated will.

Question 7

Key v Key (2010)

Mental capacity

Answer 7

The court took into account the effect of a recent bereavement upon the testator’s mental capacity.

Question 8

Re Wilson (Deceased) (2013)

Mental capacity

Answer 8

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.

Question 9

Cartwright v Cartwright (1793)

Mental capacity

Answer 9

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.

Question 10

Richards v Allan (2000)

Mental capacity

Answer 10

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.

Question 11

Kostic v Chaplin and Others (2007)

Mental capacity

Answer 11

The court has to consider situations where the testator has been suffering from an insane delusion which no rational person would believe.

Question 12

Re Ritchie (2009)

Mental capacity

Answer 12

The court has to consider situations where the testator has been suffering from an insane delusion which no rational person would believe.

Question 13

Parker v Felgate (1883)

Mental capacity rule

Answer 13

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.

Question 14

Perrins v Holland and Other (2010)

Mental capacity rule

Answer 14

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.

Question 15

Burgess v Hawes (2013)

Mental capacity

Answer 15

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.

Question 16

Pearce v Beverley (2013)

Mental capacity

Answer 16

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.

Question 17

Kenward v Adams (1975)

Mental capacity- Golden rule

Answer 17

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.

Question 18

Wharton v Bancroft (2011)

Mental capacity- Golden rule

Answer 18

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.

Question 19

Williams v Wilmot (2012)

Mental capacity- Golden rule

Answer 19

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.

Question 20

Cheese v Lovejoy (1877)

Revocation by destruction

Question 21

Hobbs v Knight (1938)

Revocation by destruction

Question 22

Perkes v Perkes (1820)

Revocation by destruction

Question 23

In the Goods of Dadds (1857)

Revocation by destruction

Answer 23

The act of destructions must be carried out by the testator or some other person in their presence at their instruction.

Question 24

Gill v Gill (1989)

Revocation by destruction

Answer 24

The act of destructions must be carried out by the testator or some other person in their presence at their instruction.

Question 25

Re De Kremer (1965) Revocation by destruction

Answer 25

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.

Question 26

Brunt v Brunt (1973) Mental capacity to revoke

Question 27

Gill v Gill (1909) Mental capacity to revoke

Question 28

Re Booth (1926) Mental capacity to revoke

Answer 28

The will was accidentally destroyed by fire and this was not revoked because the act of destruction was not intentional.

Question 29

Re Southerden (1925) Intention to revoke

Answer 29

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.

Question 30

Re Finnemore Deceased (1992) The doctrine of dependent relative revocation

Answer 30

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.

Question 31

Lambell v Lambell (1831) Intention to revoke

Answer 31

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.

Question 32

Welch v Philips (1836) Intention to revoke

Answer 32

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.

Question 33

Sugden v Lord St Leonards (1876) Intention to revoke

Answer 33

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.

Question 34

Re Freeman (1910) Intention to revoke

Answer 34

Intention to revoke a will must be unambiguous.

Question 35

Kitcat v King (1930) Intention to revoke

Answer 35

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.

Question 36

Re Durrance (1872) Intention to revoke

Answer 36

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.

Question 37

Re Wayland (1951) Knowledge & approval

Answer 37

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.

Question 38

Lowthorpe-Lutwidge v Lowthorpe Lutwidge (1935) Knowledge and approval

Answer 38

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.

Question 39

Pepper v Pepper (1870) Implied revocation

Answer 39

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.

Question 40

Re Howard (1944) Implied revocation

Answer 40

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.

Question 41

Perrin v Morgan (1943) Testamentory intentions

Answer 41

The court takes a strict literal approach to the words used, and a more liberal approach when asking what the words mean to the testator. A testator states in a will- 'all monies of which I die possessed shall be shared by my nephews and nieces now living'. At the time, 'monies' meant cash or money in the bank, but not the residuary personalty. The estate consisted of stocks and shares, and the word 'monies' was to include those.

Question 42

Re Rowland (1962) Testamentary intention

Answer 42

Alternative outcome to the matter of Perrin v Morgan (1943). The court adopted the dictionary meaning of a word rather than what it meant to the testator.

Question 43

Scale v Rawlins (1892) Testamentary intention

Answer 43

Generally, the testators intention is determined solely from the will itself. If the words have a clear meaning, the effect is given to those words even though this may not have been the intention.

Question 44

Re Jones (1998) Testamentary intention

Answer 44

Generally, the testators intention is determined solely from the will itself. If the words have a clear meaning, the effect is given to those words even though this may not have been the intention.

Question 45

Re Whitrick (1957) Testamentary intention

Answer 45

The court will look at the will as a whole in order to see if other parts help in interpreting what the testator meant in a particular part of the will.

Question 46

Re Davidson (1949) Testamentary intention

Answer 46

A secondary meaning of a word may be applied by the court where the testator has used a word in the secondary sense. This may be indicated by the testator in the will itself or, when the will is applied to surrounding circumstances it becomes clear that the testator has intended a particular word to be used. In this case, the testator used the words 'my grandchildren' to include step grandchildren.

Question 47

Re Smalley (1929) Testamentary intention

Answer 47

A secondary meaning of a word may be applied by the court where the testator has used a word in the secondary sense. This may be indicated by the testator in the will itself or, when the will is applied to surrounding circumstances it becomes clear that the testator has intended a particular word to be used. The testator referred to his wife as 'Eliza Ann Smalley' when his wife was called Mary Smalley, and the woman he lived with called Eliza Ann. The court held the term wife meant common a law wife, therefore referring to Eliza Ann, not Mary.

Question 48

Lassence v Tierney (1849) Conflicting gifts

Question 49

Re Cook (1948)

Question 50

Boyes v Cook (1880)

Question 51

Charter v Charter (1874)

Question 52

Kell v Charmer (1856)

Question 53

Re Williams (1985)

Question 54

Solem v Guyster (2001)

Question 55

Westland v Lilis (2003)

Question 56

Ross v Perrin-Hughes (2005)

Question 57

Re Jackson (1933)

Question 58

Pinnell v Anison (2005)

Question 59

Bothamley v Sherson (1875)

Question 60

Re Willcocks (1921)

Question 61

Re Gage (1934)

Question 62

Re Rose (1949)

Question 63

Re Clifford (1912)

Question 64

Re Slater (1907)

Question 65

Re Dorman (1994)

Question 66

Soukun v Hardoyal and Others (1999)

Question 67

Re West (1909)

Question 68

Ashburner v Maguire (1786)

Question 69

Re Seaford (1968)

Question 70

Re Maculloch's Estate (1981)

Question 71

Re Phelps (1980)

Question 72

Re Collins (1975)

Question 73

Kane v Radley-Kane and Others (1998)

Question 74

Ewing v Bennett (2001)

Question 75

Parfitt v Lawless (1872)

Question 76

Carpeto v Good (2002)

Question 77

Royal bank of Scotland v Etridge (2001)

Question 78

Gill v Woodall (2010)

Question 79

Schomberg v Taylor (2013)

Question 80

In the Goods of Bayliss (1865)

Question 81

In the Estate of McKenzie (1909)

Question 82

Hooper v Summersett (1810)

Question 83

Sharland v Mildon (1845)

Question 84

Pollard v Jackson (1994)

Question 85

Re S (1968)

Question 86

Re Crippen (1911)

Question 87

Re Biggs (1966)

Question 88

In the Goods of Wright (1898)

Question 89

AB v Dobbs (2010)

Question 90

Re Potter (1899)

Question 91

Khan v Crossland (2012)

Question 92

Re Steele (2010)

Question 93

Goodman and Another v Goodman and Another (2013)

Question 94

In the Goods of Gosling (1886)

Question 95

Re Spracklan's Estate (1938)

Question 96

Re Wayland (1951)

Question 97

Curati v Perdoni (2012)

Question 98

Re Freeman (1910)