Formalities of Wills Study Notes
Wills
Section 77-Capacity * 18 or have been married * of sound disposing mind (Banks v Goodfellow) * Courts have established principles to determine sound disposing mind. * must prove testator had animus testandi i.e intention to make disposition of property to be effective upon death. * Matter for court to decide whether will of free and capable testator * English position gave significant leeway to testator: Bird v Luckie: Wigram VC, testator is not bound to make will that would deserve approval from the ‘prudent, the wise or the good’, can be capricious and improvident and can conceal circumstances and motives. * Banks v Goodfellow: delusions being pursued by evil spirits did not influence testator’s capacity. * Cockburn CJ: formulated test: Suggested that T 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 intends to dispose of, of the people who are to benefit from his bounty and the manner in which it is to be distributed. * Leger v Poirier: Court had to determine at which point old lady’s senility influenced her capacity. * Rand J: A sound disposing mind is one able to comprehend of its own initiative and volition the essential elements of will making, property objects etc. It is not sufficient to merely be able to make rational responses or to repeat a tutored formula of simple terms. * A valid will can be made during a lucid interval: Re Walkers Estate * James Brady Succession Law in Ireland: Crucial point in determining the testator’s capacity is the date of execution of the will, so it follows that a testator who suffers from a mental illness can make a valid will during a lucid interval. * Chambers and Yatman v Queen’s Proctor: Lucid interval of one day, killed himself next day, will held valid. * Presumption in favour of will of deceased and capacity of testator. To rebut presumption clearest and
Section 77-Capacity * 18 or have been married * of sound disposing mind (Banks v Goodfellow) * Courts have established principles to determine sound disposing mind. * must prove testator had animus testandi i.e intention to make disposition of property to be effective upon death. * Matter for court to decide whether will of free and capable testator * English position gave significant leeway to testator: Bird v Luckie: Wigram VC, testator is not bound to make will that would deserve approval from the ‘prudent, the wise or the good’, can be capricious and improvident and can conceal circumstances and motives. * Banks v Goodfellow: delusions being pursued by evil spirits did not influence testator’s capacity. * Cockburn CJ: formulated test: Suggested that T 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 intends to dispose of, of the people who are to benefit from his bounty and the manner in which it is to be distributed. * Leger v Poirier: Court had to determine at which point old lady’s senility influenced her capacity. * Rand J: A sound disposing mind is one able to comprehend of its own initiative and volition the essential elements of will making, property objects etc. It is not sufficient to merely be able to make rational responses or to repeat a tutored formula of simple terms. * A valid will can be made during a lucid interval: Re Walkers Estate * James Brady Succession Law in Ireland: Crucial point in determining the testator’s capacity is the date of execution of the will, so it follows that a testator who suffers from a mental illness can make a valid will during a lucid interval. * Chambers and Yatman v Queen’s Proctor: Lucid interval of one day, killed himself next day, will held valid. * Presumption in favour of will of deceased and capacity of testator. To rebut presumption clearest and