Facts
- In 2001 Ms Hordern (the, “Testator”) made a will (the, “First Will”) leaving her estate to Ms Richardson who was her niece.
- In 2004 a new will was made (the, “Second Will”) leaving estate to Ms Carr and in so doing excluded the niece.
- The Testator died in 2014.
- The niece asserted the testator lacked testamentary capacity rendering the 2004 invalid.
- Ms Carr cross-claimed seeking probate of the 2004 will.
- The judge at first instance held that the niece should successfully challenged the will, and that probate should be granted to her.
Testamentary Capacity
Testamentary capacity is explained in Banks v Goodfellow (1870) LR 5 QB 549 at 565 as: -
- understanding the nature of a will and how it worked;
- knowing the extent of your property (at the time of execution of the will);
- having the capacity to understand the claims beneficiaries have on the estate and forming a deliberate intent to exclude some persons; and
- there being an absence of conditions that interfere with testamentary capacity.
Here the niece was excluded because the testator believed she made disgraceful comments about her mother (the sister of the testator) to the effect that she had ruined her life. At law a false belief would not be enough to show there was a lack of testamentary capacity. It is only if the false belief points to there being an unsound mind that the validity of the will can be attacked. An example would be an insane delusion (or false belief) that a person could not be reasoned out of. Consequently, testamentary capacity is not only for those who are wise and fair. If a testator wants to exclude someone, based on a false belief, then they are free to do so except if such a belief points to an unsound mind.
In the present case the testator formed the view that the niece spoke ill of her mother, that she failed to visit her as the testator since then and that in any event the niece was not in any relevant need. The medical evidence showed that she had an impaired memory. It was not clear that the niece had spoken ill of her mother causing speculation that the testator fabricated that story. It was, however, clear that there had been a disagreement about euthanasia.
Conclusion
As such the false belief was not enough to show that the testator was delusional and that she lacked testamentary capacity. To contest a will you need more than just a false belief.
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